P. v. Avelar
Filed 12/3/09 P. v. Avelar CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. OMAR FRANCISCO AVELAR, Defendant and Appellant. | B214387 (Los Angeles County Super. Ct. No. LA057971) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Pursuant to a plea agreement, defendant and appellant Omar Avelar pleaded no contest to forgery (Pen. Code, 470, subd. (d)[1]), second degree commercial burglary ( 459), grand theft of personal property ( 487, subd. (a)), and five counts of theft ( 484e, subd. (d).) The trial court sentenced defendant to the upper term of three years in state prison for his forgery conviction and to a concurrent, middle term sentence of two years on each of the remaining convictions. The trial court imposed, inter alia, a victim restitution award of $4,905.84 and awarded defendant 564 days of presentence credit consisting of 376 days of custody credit and 188 days of conduct credit.
Defendant timely filed a notice of appeal. Defendant requested a certificate of probable cause with respect to the trial courts ruling on his motion to suppress evidence under section 1538.5. The trial court granted defendants request.
On appeal, defendants appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. On September 9, 2009, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant filed a letter brief contending that the trial court erred in denying his section 1538.5 motion, the affidavit in support of a search warrant and the reporters transcripts for his section 995 and 1538.5 motions have been altered, and he received a longer sentence because his greedy lawyers dragged his case. We affirm the judgment.
BACKGROUND
Defendants section 1538.5 suppression motion was based on his assertion that the search warrant issued for his residence was based on the obviously false allegations of defendants former 14-year-old girlfriend, Ashley J., that defendant raped her.[2] In his motion, defendant contends that the police knew Ashley was lying, but played along to obtain a warrant to search his residence. Defendant appears to have been charged in a separate case, case number LA057966, with raping Ashley. The trial court reviewed the preliminary hearing from that case in deciding defendants suppression motion, apparently to determine Ashleys veracity. Because defendants suppression motion did not concern the facts underlying his substantive offenses in this case, we do not summarize those facts. Instead, we set forth the facts alleged in the affidavit in support of the search warrant and briefly address Ashleys preliminary hearing testimony from case number LA057966.
In the affidavit in support of the search warrant to search defendants residence, Los Angeles Police Department Officer John P. Eum stated that Ashley, a 15-year-old who had run away from home, told Officer Maria Garcia that she met defendant through a friend. When Officer Garcia spoke with Ashley, Officer Garcia noticed numerous bruises on Ashleys arms, legs, and neck. Ashley told Officer Garcia that in August 2007, she and two friends went to defendants apartment and decided to stay with defendant for a month.
On August 18, 2007, Ashley and her friends were with defendant and Ruben. They drank several alcoholic beverages and Ashley passed out. When Ashley woke, she was naked, on a bed and defendant, who was also naked, was beside her. Ashleys vaginal area hurt and she believed that defendant had sexually assaulted her while she was passed out. During the next few weeks, defendant physically forced Ashley to have sexual intercourse with him. After about a month, Ashley returned home.
In October 2007, Ashley moved back to defendants apartment. According to Ashley, defendant forcibly raped and battered her two or three times a week. At some point, Ashley moved with defendant to defendants brothers house, where defendant battered Ashley and forced her to have sexual intercourse with him.
In addition to the rape allegations, Ashley claimed that defendant was doing ATM thefts and other forms of forgery/fraud. Ashley also claimed that defendant carried a semi-automatic handgun and that he had put the handgun against her head during one of the sexual assaults and threatened to kill her if she left him. Ashley finally left defendant in January 2008.
Detective Eum stated that he contacted the Commercial Crimes Division and advised them about the investigation regarding the ATM thefts/forgeries. That division advised Detective Eum that there was an on-going forgery case involving a forged check that defendant had cashed at a Downey Savings branch.
Detectives had Ashley conduct a pretext telephone call with defendant. During that telephone call, defendant admitted knowing that Ashley was 14 years old and that he had battered her a number of times. Defendant did not admit that he had sexual intercourse with Ashley. Detective Eum and another detective went to defendants brothers house. Defendants brother showed the detectives the room where defendant stayed, but would not allow the detectives to search the room.
In his affidavit, Detective Eum stated his opinion, based on his training and experience, that defendants residence would contain evidence that would tend to show that defendant sexually assaulted Ashley and threatened her with a firearm. Detective Eum also opined that persons who engage in the felony crimes of identity theft, forgery, and credit card fraud often keep evidence of these crimes on their persons, in their vehicles, in computers, and in their residence.
The magistrate found probable cause for the search and issued the warrant. The warrant called for the search of defendants brothers house and called for the seizure of an encompassing list of evidence of defendants sexual assault of Ashley and of his financial crimes.
Ashley testified at defendants preliminary hearing in case number LA057966 the rape case. Ashleys preliminary hearing testimony concerning the sexual assaults was consistent with the statements attributed to her in Detective Eums search warrant affidavit.
Defendant filed a motion, under section 1538.5, to suppress all evidence found in the search of his room at his brothers house. Such evidence included, but was not limited to All credit cards, bank cards, gift cards, and any other evidence that could be used against him.
DISCUSSION
Defendants Contentions
A. Defendants Section 1538.5 Motion to Suppress Evidence
In his supplemental letter brief, defendant challenges the trial courts denial of his motion to suppress evidence under section 1538.5. In support of this challenge, defendant contends, among other things, that the affidavit in support of the search warrant contains false allegations and his arrest was manipulated for the sole purpose of a search.
In his suppression motion, defendant contended that the search of his room and seizure of evidence was unlawful because the search warrant was obtained based on Ashleys false claim that he raped her. Defendant contended that Ashley was his girlfriend, they had just broken up, it was obvious that Ashley was lying about the rape, and the police knew Ashley was lying but played along with Ashleys story so they could obtain a search warrant.
The trial court considered defendants section 1538.5 motion as a motion to quash and traverse the search warrant. The trial court stated that it had read the preliminary hearing transcript from case number LA057966 and the affidavit in support of the search warrant. The trial court stated that it did not appear that a reasonable person would believe Ashley was lying. The trial court found that defendant failed to show that the affiant, Detective Eum, made deliberately false or misleading statements. The trial court denied the motion.
A search warrant must be supported by probable cause. [Citations.] In determining whether probable cause exists, the magistrate considers the totality of the circumstances. (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103-1104.) 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. (Illinois v. Gates (1983) 462 U.S. 213, 238-239 [103 S.Ct. 2317, 2332, 76 L.Ed.2d 527]; People v. Camarella (1991) 54 Cal.3d 592, 600-601 [286 Cal.Rptr. 780, 818 P.2d 63].) 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. (Illinois v. Gates, supra, at p. 238 [103 S.Ct. at p. 2332].) (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) The magistrates determination of probable cause is entitled to deferential review. (Id. at p. 1041; People v. Varghese, supra, 162 Cal.App.4th at p. 1104 [A court reviewing the issuance of a search warrant defers to the magistrates finding of probable cause unless the warrant is invalid as a matter of law]; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716 [Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants].)
An accused has a limited right to attack the veracity of allegations appearing in a search warrant affidavit. The pertinent federal constitutional rule in this regard was set forth by the United States Supreme Court in Franks v. Delaware [(1978)] 438 U.S. [154,] 155-156 [98 S.Ct. at pages 2676-2677] as follows: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendants request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavits false material set to one side, the affidavits remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. (See People v. Benjamin [1999] 77 Cal.App.4th [264,] 267-268.) The hearing where a defendant challenges the veracity of the affiants statements under oath is commonly called a Franks hearing. (See U. S. v. Maro (7th Cir.2001) 272 F.3d 817, 821; People v. Luttenberger [1990] 50 Cal.3d [1,] 18.) Because of the difficulty of meeting the substantial preliminary showing standard, Franks hearings are rarely held. (U. S. v. Graham (6th Cir. 2001) 275 F.3d 490, 506; U. S. v. Swanson (7th Cir. 2000) 210 F.3d 788, 789-790.) (People v. Estrada (2003) 105 Cal.App.4th 783, 790.)
Based on the circumstances set forth in Detective Eums affidavit, which included the statements of Ashley concerning defendants sexual assaults and financial crimes, the magistrate was justified in concluding that that was a fair probability that contraband or evidence of a crime would be found in defendants residence. (People v. Kraft, supra, 23 Cal.4th at p. 1041; People v. Varghese, supra, 162 Cal.App.4th at pp. 1103-1104.) Accordingly, there was probable cause on the face of the search warrant and affidavit to issue the search warrant for defendants residence. (Id. at pp. 1103-1104.)
As for defendants contention that the search warrant was defective because it was based on lies, defendant presented no evidence that Detective Eum, the search warrants affiant, included a false statement in his affidavit knowingly and intentionally, or with reckless disregard for the truth. (People v. Estrada, supra, 105 Cal.App.4th at p. 790.) Accordingly, defendant failed to make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit. (Franks v. Delaware, supra, 438 U.S. at pp. 155-156.)
B. Defendants Claim That the Search Warrant Affidavit and the Reporters
Transcripts for the Hearing on His Section 995 and 1538.5 Motions Were
Altered
Defendant contends that the affidavit in support of the search warrant, the reporters transcript for the preliminary hearing from case number LA057966, and the reporters transcript for the hearing on his section 995 and 1538.5 motions in this case have been altered. This contention cannot be resolved on the record before us. Defendants claim in this regard is more suited to a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
C. Defendants Sentence
Defendant contends that he received a longer sentence by having [his] case dragged to almost a year by greedy lawyers until [he] went pro-per. Defendant has failed to state a claim for relief. Even if defendants claim about greedy lawyers stated a legally cognizable claim, defendant has not been prejudiced by any delay. Defendant received 564 days of custody and conduct credit for the time he spent in custody while his case dragged and he waited to go to trial.
We have otherwise examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities on appeal and that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
ARMSTRONG, Acting P. J. KRIEGLER, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] All statutory citations are to the Penal Code unless otherwise noted.
[2] Ashley was born in November 1992. Defendants relationship with Ashley appears to have commenced sometime around August 2007 when Ashley was 14 years old and to have ended in January 2008 when she was 15 years old.
