Filed 12/20/19 P. v. Barraza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PATRICK BARRAZA,

Defendant and Appellant.

H045987

(San Benito County

Super. Ct. No. CR-15-00927)
Defendant was convicted of unlawfully possessing a firearm seized from his home pursuant to a search warrant. He argues that trial counsel rendered ineffective assistance by failing to challenge the probable cause affidavit supporting the warrant. In light of our conclusion that the officers were entitled to rely on the warrant in good faith, defendant has failed to meet his burden to show his attorney performed deficiently.

We do, however, find merit in defendant’s argument that insufficient evidence supported the trial court’s finding that he violated the conditions of his Cruz waiver, leading to him being sentenced outside the scope of the plea agreement. We will therefore remand the matter for resentencing.

I. BACKGROUND
II.
A search warrant was executed at defendant’s home in May 2015. Officers found four shotguns, three handguns, five semi-automatic rifles, six other rifles, three bullet proof vests, multiple high capacity rifle and handgun magazines, and approximately 2,000 rounds of ammunition. The magazines were located together with $3,150 in U.S. currency. Gang indicia (a red baseball hat, a red bandana, and red shoes) was also found in the residence.

Defendant was released on bail after surrendering to authorities. A felony complaint charged him with firearm possession by a felon (Pen. Code, § 29800; count 1), manufacturing, importing, keeping for sale, giving, or receiving a large capacity magazine (Pen. Code, § 32310; count 2), possessing an assault weapon (Pen. Code, § 30605; count 3), and ammunition possession by a felon (Pen. Code, § 30305, subd. (a)(1); count 4).

The probable cause affidavit supporting the search warrant relied on information provided by a confidential informant. Trial counsel moved for disclosure of the informant’s identity. The motion was denied because defendant was unable to establish that the informant’s identity was material to the issue of defendant’s guilt. (See People v. Lawley (2002) 27 Cal.4th 102, 159 [“the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant”].) A briefing schedule was then set for a discovery motion related to the truthfulness of the affidavit under People v. Luttenberger (1990) 50 Cal.3d 1.

Defendant did not file a Luttenberger motion or challenge the sufficiency of the probable cause affidavit. He waived his right to a preliminary hearing, and trial settings were continued several times over the next 18 months. At one point the court ordered a pre-plea probation report which concluded that defendant was not amenable to probation.

In February 2018 defendant entered a no contest plea to count 1, and he admitted four prior felony convictions to establish his status as a felon. The court indicated a sentence of no more than two years’ imprisonment (the middle term), and the prosecutor agreed not to oppose probation and that remaining counts would be dismissed. Defendant entered a waiver under People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), which the trial court invoked at defendant’s initial sentencing hearing after noting defendant’s “late appearance” at probation. The matter was continued to allow the Probation Department to prepare its sentencing recommendation. Defendant was sentenced at the continued hearing to a three-year prison term.

III. DISCUSSION
IV.
A. COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE
B.
Defendant argues his trial counsel was constitutionally ineffective in failing to challenge the legality of the search based on a facially deficient search warrant. An ineffective assistance claim requires a showing both that counsel’s performance fell below an objective standard of reasonableness and that defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The record on appeal must “affirmatively disclose[ ] that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

Absent any promises by the prosecutor related to uncharged offenses (not an issue on this record), failing to bring a meritorious motion that would have resulted in the dismissal of charges would constitute deficient performance when measured against the standard of a reasonably competent attorney. (People v. Hart (1999) 74 Cal.App.4th 479, 486–487.) Here the factual basis for the charged offenses depended entirely on the evidence seized pursuant to the search warrant. If the seized items were subject to exclusion, the prosecution could not have proven its case. We therefore must examine the sufficiency of the search warrant affidavit and the applicability of the exclusionary rule to determine whether trial counsel was constitutionally ineffective.

1. Sufficiency of the Affidavit

Legal Principles

Probable cause to issue a search warrant must be based on information contained in an affidavit providing a substantial basis from which a magistrate can reasonably find a fair probability that an identified place contains contraband or evidence of a crime. (Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1111, citing Illinois v. Gates (1983) 462 U.S. 213 (Gates).) In the case of an informant, the individual’s veracity, reliability, and basis of knowledge are relevant to a probable cause determination, as are independently corroborated details of an informant’s tip. (Gates, at pp. 230, 241.) An affidavit relying on hearsay is not insufficient “ ‘so long as a substantial basis for crediting the hearsay is presented.’ ” (Id. at pp. 241–242.) A police officer “ ‘may rely upon information received through an informant … so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.’ ” (Id. at p. 242.) Unverified information provided by an untested informant is ordinarily unreliable, and it does not establish probable cause without corroboration “ ‘in essential respect by other facts, sources or circumstances.’ ” (People v. Maestas (1988) 204 Cal.App.3d 1208, 1220.) Corroboration pertains to a target’s alleged criminal activity along the lines suggested by the informant, not to general information about the target. (People v. Costello (1988) 204 Cal.App.3d 431, 447.)

The magistrate is tasked with making “a practical, commonsense decision whether, given all the circumstances set forth in [a police officer’s] affidavit [], 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.” (Gates, supra, 462 U.S. at p. 238.) When relying on hearsay information, “[t]he only real issue is whether the affidavit contains sufficient facts to allow the magistrate to make an independent determination of the reliability and sufficiency of the information provided by” an informant. (People v. Terrones (1989) 212 Cal.App.3d 139, 148 (Terrones).) The magistrate’s action “cannot be a mere ratification of the bare conclusions of others,” as “a mere conclusory statement [] gives the magistrate virtually no basis at all for making a judgment regarding probable cause.” (Gates, at p. 239.)

The Affidavit

The affiant, Hollister Police Officer Miguel Masso, stated that within the three days immediately preceding his search warrant application, he “had personal conversation with an untested confidential informant” referred to as X. The affidavit continued: “X advised that X had been to [the street address identified in the warrant] and ha[s] had personal conversations with [defendant] who resides at this address about firearms. X advised that [defendant] is a known gang member and part of the Hispanic street gang commonly known as ‘NF’ (nuestra familia). During X’s visits, [defendant] would show him multiple firearms, ammunition and high capacity magazines. [¶] X visits [defendant] on a regular basis, but the last time X visited [defendant’s residence] was 4 days ago. During that visit, [defendant] showed X an AR-15 and a magazine which has the capacity of 100 rounds of ammunition. X said [defendant] also showed him an SKS rifle and an AK-47 along with an assortment of different types of magazines which some have the capacity of containing a large amount of ammunition. X advised [defendant] keeps the ammunition and firearms in his garage at [address]. [¶] X also advised that [defendant] keeps a large amount of ammunition in his residence. X advised that some of the firearms which [defendant] have had illegal modification which allows them to be fired in a setting of automatic or rapid fire. [¶] X advised that [defendant] has 7 to 9 handguns which he allows gang members to use when a conflict arises. X advised he knows that some of these handguns [] had been used in [a] recent shooting within the city limits of Hollister. [Defendant] also holds some of his friend’s handguns at his residence for safe keeping. At times when there’s a feud between gang members whether it’s within the city of Hollister or somewhere else, gang members would contact [defendant] who would in turn allow and provide them with ammunition and firearms to deal with the conflict. These handguns are later returned to [defendant] who would hold them until they are requested. [¶] During my interview with X, Hollister Police Department Detective S. Esqueda was present. Detective Esqueda corroborated the information provided by X. I later contacted Unified Narcotics Enforcement Team (UNET) member Hollister Police Department Detective M. Weiss and informed him of the incident. Detective Weiss also corroborated the information which was provided by X. [¶] X also provided information regarding two [h]omicides which were corroborated by Detective Esqueda. One of the [h]omicides occurred within the city limits of Hollister and the other in Gilroy. [¶] On 04/25/15 at approximately 1330 hours, I contacted and spoke with Santa Clara Homicide Detective Quinonez. Detective Quinonez corroborated the second homicide to a similar case and believes it had occurred in their jurisdiction. [¶] X also provided information regarding the illegal transport and sale of methamphetamine within the city limits of Hollister. There is currently a search warrant being prepared for that incident. X provided detail[ed] information of these activities and also admitted to X’s involvement with these activities. [¶] … I contacted NETCOM and requested a criminal history check on [defendant]. NETCOM confirmed [defendant] has been arrested multiple times within the city limits of Hollister, San Benito [County,] and Santa Clara County. NETCOM confirmed [defendant] has had 10 misdemeanor convictions and 4 felony convictions. These convictions ranged from drug/narcotics offenses to weapons offenses. NETCOM also confirmed [defendant’s] DMV address is that of [search warrant address].”

Analysis

The affidavit lacks sufficient facts for a magistrate to make an independent determination regarding the reliability of the information provided by X. (Gates, supra, 462 U.S. at p. 239; Terrones, supra, 212 Cal.App.3d at p. 148.) The affidavit does not set forth the basis of the informant’s knowledge that some of the handguns in defendant’s possession are loaned to gang members, held for friends, and have been used in recent shootings in Hollister. But of more concern, Officer Masso’s statements that X’s information was corroborated by other officers are wholly conclusory. As they relate to the charged offenses, we do not know what “information provided by X” was corroborated or the nature of the corroboration.

The Attorney General argues that the information related by the informant based on his personal knowledge “ ‘may compensate for a less than conclusive demonstration of credibility,’ ” citing People v. French (2011) 201 Cal.App.4th 1317. The probable cause affidavit found deficient in French relied on information provided by several confidential informants. Addressing a hearsay statement by one of the informants (that his wife had purchased heroin from the defendant), the court in French commented that “hearsay has little value where the informant is untested and the information is uncorroborated and lacking in detail.” (Ibid.) Indeed, the affidavit in French was facially deficient because none of the informants was inherently reliable (a statement that past information given by an informant “ ‘was corroborated and criminal cases were made behind the information’ ” was found insufficient to establish reliability); none provided significant information based on personal knowledge; the police investigation corroborated only pedestrian facts; and a criminal history lacking detail was not corroborative. (Id. at pp. 1316–1321.)

The French court contrasted the probable cause affidavit found sufficient in Terrones, where the informants “had no track record of reliability, [but] ‘the fact that the basis of their knowledge was personal observation “may compensate for a less than conclusive demonstration of [their] credibility.” ’ ” (French, supra, 201 Cal.App.4th at p. 1317.) The affidavit in Terrones contained firsthand observations by two citizen informants of activity consistent with drug dealing outside the target’s residence, and two other informants admitted purchasing cocaine from the target at his residence. (Terrones, supra, 212 Cal.App.3d at pp. 147–149.)

Neither French nor Terrones supports the notion that a single untested informant may be deemed reliable merely by providing a detailed accounting of specified criminal activity. Some corroboration is required to establish the veracity of the information related by the informant. In Terrones the personal observations of two citizen informants were consistent and mutually supporting, increasing the probability that the information was true. (Terrones, supra, 212 Cal.App.3d at p. 149.) Probable cause was further supported in that case by two other informants who admitted purchasing cocaine from the defendant at the defendant’s residence. (Ibid.)

Here, Officer Masso was relating the personal observations of a single police informant (not a citizen informant). While the information was said to have been corroborated, the affidavit did not allow the magistrate to independently assess whether the information was in fact reliable. Officer Masso’s statement that the informant provided corroborated information regarding two homicides contributes little to assessing the informant’s credibility because it is unknown whether the information related was available from independent sources. Nor does it corroborate the informant’s statements regarding defendant’s criminal conduct because no nexus is described between the two. The informant’s admission of involvement with methamphetamine trafficking in Hollister is similarly unhelpful because it appears to have been contemporaneous with the statements describing defendant’s criminal activity, and so had not been verified. A search warrant had neither been obtained nor executed based on that information.

Ultimately, the affidavit viewed cumulatively lacks a substantial basis to support the magistrate’s own probable cause determination. Although some of the facts are detailed and reflect the informant’s personal observations, they are not self-verifying, and their reliability is not demonstrated by conclusory statements regarding corroboration and contemporaneous unverified information about criminal activity unrelated to defendant.

2. Good Faith Exception to the Exclusionary Rule

The exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights. (United States v. Leon (1984) 468 U.S. 897, 907.) The rule was designed to deter police misconduct, and does not apply to objectively reasonable law enforcement activity. (Id. at pp. 916, 919.) The exclusionary rule does not bar the use of evidence obtained by officers acting in reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause unless the affidavit is “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (Id. at pp. 900, 923.) “ ‘[A] warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ ” (Id. at p. 922.) When evidence is obtained pursuant to a warrant later found to lack probable cause, suppression is determined on a case-by-case basis, and “only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” (Id. at p. 918.)

Defendant argues that exclusion is the appropriate remedy here because a reasonably well trained officer would have known that the search warrant was not supported by probable cause. He urges that the failure to investigate and corroborate the untested informant’s observations shows a lack of good faith belief in the existence of probable cause. But the affidavit is not wholly lacking any indicia of probable cause; indeed, it related facts based on the informant’s personal observations which, if also reliable, would establish probable cause of criminal activity. It is clear that Officer Masso understood the informant’s information required corroboration. He and other officers undertook an investigation to verify the information, and he included his conclusions in the affidavit. He sought and obtained approval of the warrant from a judicial officer charged with issuing warrants comporting with Fourth Amendment requirements, and he acted within the scope of the warrant. We cannot conclude under the circumstances that Officer Masso had grounds to believe the warrant was not properly issued.

In light of the well-supported application of the good faith exception to the exclusionary rule here, defendant has not met his burden to show trial counsel’s performance constitutionally deficient.

C. SENTENCING ERROR
D.
Defendant entered a no contest plea pursuant to an oral negotiated disposition. He admitted count 1 with a promise from the prosecutor not to oppose probation and an indicated sentence from the court of no more than a two-year prison term. Before accepting defendant’s change of plea, the court explained that the indicated sentence was conditioned on defendant meeting the court’s expectations while out of custody pending sentencing. In addition to providing his fingerprints and DNA to law enforcement, returning to court for sentencing, and obeying all laws, defendant was ordered to “go to probation so they can interview you and prepare the report for sentencing.” The court cautioned: “As long as you meet my expectations, that plea arrangement we have remains in effect. However, if you don’t meet the expectations I have laid out [or] have [a] legal excuse for failing to meet them then I would consider your plea an open plea, and you will not be allowed to withdraw your plea and [the] Court may sentence you to the maximum sentence allowed, you will have no right to complain.” Defendant said he understood, and the court noted that a waiver had been entered under People v. Cruz. Defendant does not challenge the validity of the waiver, and we assume it is valid for purposes of this appeal.

Defendant argues the court’s indicated sentence was an enforceable promise because his no contest plea was induced in part by the two-year sentencing cap, and the court erred by exceeding it because he complied with the conditions of his continued release. The Attorney General argues that although defendant’s plea was induced in part by the indicated sentence, the record supports a finding that defendant failed to comply with the conditions of release, and defendant forfeited his sentencing challenge by failing to raise it in the trial court.

The Attorney General’s forfeiture authorities are inapposite, as they address the failure to move to withdraw a plea after being admonished of the right to do so under Penal Code section 1192.5 (People v. Murray (1995) 32 Cal.App.4th 1539, 1545–1546) or in the absence of an admonition under Penal Code section 1192.5 (People v. Walker (1991) 54 Cal.3d 1013, 1026). The cases do not address the failure to object to a finding that conditions of release encompassed by a Cruz waiver were violated. A challenge to the sufficiency of the evidence underlying a conclusion is an exception to the general rule that points not urged in the trial court cannot be raised on appeal. (People v. Dowl (2013) 57 Cal.4th 1079, 1089.) And we have discretion to reach the issue even if it were forfeited. (People v. Smith (2003) 31 Cal.4th 1207, 1215.)

Whether a defendant violated conditions of release is a factual question we review for substantial evidence. (People v. Rabanales (2008) 168 Cal.App.4th 494, 509.) The record shows defendant reported to the probation department for a presentence interview the week before his March 22 sentencing date. Thus, there is insufficient evidence that defendant failed to comply with the condition that he “go to probation so they can interview you.” The record also shows that defendant complied with the other conditions of the Cruz waiver: He provided his fingerprints and DNA to authorities, and he appeared as ordered for sentencing.

The Attorney General argues the trial court’s reliance on the Cruz waiver was proper because defendant failed to comply with the court’s directive to “go to probation immediately” to complete the firearms relinquishment process. But the firearms relinquishment requirement was not encompassed by the February 22 Cruz waiver. In fact, that specific directive was not made until March 22, after the court invoked the Cruz waiver to withdraw the indicated sentence based on its stated “concern[] about [defendant’s] late appearance at probation.”

We will remand the matter for resentencing. On remand, the trial court shall either sentence defendant consistent with the indicated sentence, or allow defendant to withdraw his plea if the court elects to withdraw its approval of the plea under Penal Code section 1192.5. If the trial court elects to act under Penal Code section 1192.5 and defendant does not move to withdraw his plea, the court may reinstate its original sentence.

V. DISPOSITION
VI.
The judgment is reversed and the matter is remanded to allow for resentencing consistent with this opinion.

____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J.

____________________________

Danner, J.

H045987 – The People v. Barraza