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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Respondent,
v.
DAVE ALLEN PICKENS,
Defendant and
Appellant.
H039063
(Santa Cruz
County
Super. Ct.
No. F21149)
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;
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.â€
On
defendant’s behalf, trial counsel filed a timely
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. (
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.†(
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.â€
One is simply “Transportation of Methamphetamine Charge.†We do not understand what legal issue he
intends. As this court explained in
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.)
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].)’ â€
(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 “
The denial of a motion to suppress evidence under Penal Code section 1538.5; or
[¶]
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.â€
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 “
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
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.â€
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. (
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.
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.â€
(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.)â€
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 “[
reduce[s] the chances of a reckless or prevaricating tale,†thus providing a
“substantial basis for crediting the hearsay.â€
’ (Id., at pp. 244-245.)†(
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
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.]’ â€
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;
1305, 1311.)
Our
review of the entire record has revealed no arguable issues on appeal.
iv.
disposition
The
judgment is affirmed.
____________________________________
Grover,
J.
CONCUR:
____________________________
Premo,
Acting P.J.
____________________________
Mihara,
J.
