San Mateo County Super. Ct. No. SC29739 Judge: Margaret J. Kemp
The opinion of the court was delivered by: George, C. J.
After a jury trial, defendant Celeste Simone Carrington was convicted of the first degree murders of Victor Esparza and Carolyn Gleason, and the jury found true, as to each count of murder, allegations of burglary and robbery special circumstances. (Penal Code §§ 187, subd. (a), 190.2, subd. (a) (17)(I) & (VII), 1203.06, subd. (a)(1), and 12022.5, subd. (a).) *fn1 The jury also found true a multiple-murder special circumstance. (§ 190.2, subd. (a)(3).) Defendant was convicted of the second degree attempted murder of Dr. Allan Marks, and an allegation that she personally inflicted great bodily injury during the commission of that crime was found true. (§§ 664, 187, subd. (a); 12022.7.) She was convicted of the robbery of each of these three victims, as well as eight counts of commercial burglary. (§§ 211, 460, subd. (b).) Except as to five of the counts of commercial burglary, allegations that defendant personally used a firearm in the commission of these offenses were found true. (§§ 1203.06, subd. (a)(1) and 12022.5, subd. (a).) After the penalty phase of the trial, the jury returned a verdict of death, and the trial court denied defendant's motion to modify the verdict to life imprisonment without the possibility of parole. (§ 190.4, subd. (e).) This appeal is automatic. (§ 1239, subd. (b).)
For the reasons discussed below, we reverse defendant's convictions for burglary in counts 9 and 10 and affirm defendant's remaining convictions and death sentence.
The offenses of which defendant Celeste Carrington was convicted arose out of four separate incidents. Most of the facts underlying these offenses were admitted by defendant in her statements to the police, which she made shortly after her arrest. The first incident involved the burglary of a Dodge dealership located at 640 Veterans Boulevard in Redwood City, on the night of January 17, 1992. In her statement to the police, defendant admitted the following. She previously had been employed as a janitor for several companies and, having worked in this building, defendant was aware that the back entrance was often left unlocked. She went to that location with gloves and a crowbar, which she used to force open several interior doors. Among other items, she stole a .357 magnum revolver and five bullets.
The second incident involved the burglary of a building located at 1123 Industrial Road in San Carlos and the murder of Victor Esparza, on the night of January 26, 1992. In her statement, defendant admitted the following. She previously had worked on the premises as a janitor and had retained a key to the building. She borrowed a car from her neighbor and drove to the location, armed with the .357 magnum revolver she had stolen from the Dodge dealership. She used her key to enter the building, accidentally setting off the alarm. Victor Esparza, who was cleaning the facility, observed her in an office cubicle. She told him that she worked in the building and must have accidentally set off the alarm. Esparza asked her to call the building manager to report the alarm, took out his wallet, and handed her a telephone number. Defendant displayed the gun and took his wallet, which contained about $45 or $55 in cash. She also demanded the personal identification number (PIN) for his automated teller machine (ATM) card, which he wrote down. As defendant walked out of the cubicle, she turned around and shot Esparza. She later attempted to use his ATM card, but the PIN he had given her was invalid. Defendant admitted that she intended to kill Esparza, and that the experience was exciting and made her feel powerful.
The forensic pathologist who performed the autopsy on Esparza, Peter Benson, testified that Esparza died of a gunshot wound to the head, inflicted from a distance of approximately six inches. Benson concluded that the angle of the gunshot wound was not inconsistent with the victim having been shot while kneeling and looking up at the shooter, nor was it inconsistent with the possibility that the victim was standing. Celia Hartnett, a criminalist for the San Mateo County Sheriff's Laboratory who examined Esparza's body at the crime scene, testified that in her opinion - based upon the position of the body and the clothing, the pools of blood on the carpet, the blood on the clothing, and an abrasion on the forehead - he probably was on his knees when he was shot, with his arms raised in a defensive position; he likely fell forward and then rotated onto his back. Hartnett believed that Esparza was shot from a distance of between six inches and one foot.
The third incident involved the burglary of an office building located at 777 California Street in Palo Alto in Santa Clara County and the murder of Carolyn Gleason, on March 11, 1992. In her statement to the police, defendant admitted the following. She previously had worked as a janitor in the building and had retained a key. A neighbor gave her a ride to the premises from her apartment in East Palo Alto. Defendant brought a pair of gloves, a screwdriver, and the same .357 magnum revolver she had used to kill Victor Esparza. Her key would not open the door. She observed two cars in the parking lot and two janitors working in the building. She waited for these individuals to leave before using the screwdriver to open the door. Defendant walked through the facility looking for money but found none. She heard Caroline Gleason enter and go into an office. Defendant watched her and eventually encountered her in the copy room. When defendant displayed the gun, Gleason begged her to put it away. According to defendant, she did not want to hurt Gleason, but she became nervous and pulled the trigger.
After shooting Gleason, defendant took Gleason's keys and about $400 from her desk. She went outside to the parking lot and entered Gleason's car, where she found Gleason's purse, which contained her ATM card and PIN. Defendant drove the car to a bank in Palo Alto, where she made two unsuccessful attempts to withdraw money from Gleason's account, but was able to withdraw $200 from an ATM at a 7-Eleven store and another $100 from a second bank. She left the car in a hospital parking lot and took a taxi back to her apartment.
An autopsy indicated that Gleason died as the result of a single gunshot to the head fired from a very close range. The prosecution's forensic expert, criminalist Hartnett, opined - based upon the position of Gleason's body, the height of the blood spatters, the angle of the gunshot wound, and the presence of gunshot residue on Gleason's sleeve - that the victim was kneeling and had tried to cover her face when shot.
The fourth incident involved the burglary of a medical office building located at 80 Brewster Street in Redwood City and the attempted murder of Dr. Allan Marks, on the evening of March 16, 1992. Defendant, in her statement to the police, admitted the following. As in two of the earlier incidents, she brought with her a key she had retained from her prior employment at the building as a janitor, a pair of gloves, and the same .357 magnum revolver. The doors to the building still were unlocked when she arrived at 5:30 p.m. After discovering that she was unable to open any of the internal offices with her key, defendant hid in a closet for a few hours. She emerged from the closet and spent some time in the building before observing Dr. Marks leaving his office after a late appointment. She decided to rob him and pulled out the gun. When Marks observed her, he "went crazy" and the two struggled over the gun. During the struggle she pulled the trigger three times, resulting in one misfire and two shots. Marks managed to force her out of the office and locked the door. Defendant fled the building, taking with her some access cards and prescription drugs.
Dr. Marks testified to a somewhat different version of the shooting. According to his account, as he was about to leave his office defendant pushed the door open and came "barreling through," causing the door to push him to the side. He recognized her as a former janitor in the building and began screaming and waiving his hands. Defendant was standing about three feet from him, holding a gun in her right hand. She pointed it at his upper body, and he heard gunshots. He was shot in the left shoulder, left thumb, and right forearm. After being shot, Marks collapsed to his knees and defendant left the office. He closed the door behind her and called 911.
Defendant was arrested a few days later. Her apartment in East Palo Alto was searched pursuant to three warrants obtained by the Los Altos, Palo Alto, and Redwood City Police Departments. The police found evidence that connected defendant to all four incidents: the keys to the Redwood City Dodge dealership; the gun that had been taken from the dealership, which was the weapon used to shoot Esparza, Gleason, and Marks; Gleason's pager and purse, and the key to the building in which she was shot; a box from Gleason's office that held petty cash; a piece of paper with Gleason's PIN on it; and a drug kit taken from a doctor's office in the medical building in which Marks was shot. After the search was completed, police officers from each of the three police departments interviewed defendant, and she confessed to being the perpetrator in each of the four incidents.
The defense presented no evidence at the guilt phase of the trial. In closing argument, defense counsel conceded that the crimes occurred as defendant described them in her statements and argued that the murders were not executions. Defense counsel argued that with respect to the charge involving the robbery of Gleason, the jury should return a verdict of guilty on the lesser offense of theft and should find not true the allegation that the murder of Gleason took place during the commission of a robbery. Defense counsel also urged that as to the charge involving the attempted murder of Marks, the jury should return a verdict of guilty on the lesser offense of assault with a firearm.
At the penalty phase of the trial, the prosecution presented victim impact evidence. Esparza's sister and aunt, with whom he was residing at the time of his death, testified about the type of person he was and their relationship with him. Other relatives who resided in Mexico at the time of Esparza's death - his parents, a sister, and a brother - also testified. Gleason's two brothers-in-law testified about the effect her death had on them and their families and, in particular, on their brother, Gleason's husband. Gleason's mother had died, and her father was hospitalized at the time of defendant's trial.
The prosecution also presented evidence establishing that defendant had attempted to escape from the county jail. This evidence was contained in tape-recorded statements made by Cindy Keshmiri, an inmate who worked on the food line at the county jail. Keshmiri told a sheriff's deputy, and later an investigator from the district attorney's office, that defendant had asked her for a metal knife. Keshmiri told the authorities that she provided defendant with a hard plastic knife, which was a type used by jail staff but not available to inmates. After Keshmiri gave her the knife, defendant asked for some aluminum foil. Keshmiri assumed that defendant wanted the foil in order to make the plastic knife look like a metal one. Keshmiri gave defendant the foil and asked whether she was planning to try to escape. In response, defendant commented that the deputies do not carry guns. Defendant added, "[W]ell, I can always take one of the inmates up to the counter where the deputies are and ask for the scissors to cut their hair." Keshmiri interpreted this comment to mean that defendant intended to hold the scissors to somebody's throat in order to escape. At that point, Keshmiri decided to report these events. Based upon the information provided by Keshmiri, defendant's cell was searched, but no knife or foil was found. At trial, Keshmiri denied having been acquainted with defendant and claimed not to recall these statements. Keshmiri's tape-recorded interviews with the deputy and the investigator were admitted into evidence as prior inconsistent statements. In addition, testimony was presented demonstrating that hard plastic items, such as the knife Keshmiri provided to defendant, can be fashioned into a sharp weapon.
In mitigation, the defense presented the testimony of a clinical psychologist, Dr. Myla Young, who testified that although defendant had an average I.Q., Young's examination of defendant disclosed evidence of a brain abnormality and learning disorders. Dr. Young could not identify the cause of the brain abnormality, which could have been caused by a genetic abnormality, trauma, or illness. According to Dr. Young, the abnormality affected the left side of defendant's brain, which interfered with her ability to "see the bigger picture," to think ahead and plan, and to be able to recognize and change behavior that is unsuccessful. Dr. Young also diagnosed defendant as having a current and long-standing depression and bipolar disorder.
Friends and neighbors testified regarding defendant's family life while growing up in a low-income housing project in Philadelphia, and regarding defendant's life in the months leading up to her commission of the crimes. According to a next-door neighbor from Philadelphia, defendant as a girl frequently was left in charge of her younger brothers and sisters and on occasion she and her siblings were locked out of the house. At times, the children had nothing to eat and defendant had to ask a neighbor for food. Through a common wall, the neighbor could hear defendant's mother beating her. As a child, defendant was anxious and withdrawn. A cousin who resided with the family for two years recalled that defendant's mother seldom was present, and the cousin saw defendant's father only twice. When defendant's mother was home, she beat defendant and sometimes beat the other children.
At the time she committed the crimes, defendant was residing with her partner, Jackie, and Jackie's three children in an apartment in East Palo Alto. Defendant had been working as a janitor but became unemployed in the latter half of 1991. At that time, according to her former employer, her behavior changed - she was less cheerful, began to gain weight, stayed home, and no longer engaged in activities in the neighborhood. Defendant attempted to support Jackie and her children and often took care of the children. Jackie made frequent financial and emotional demands on defendant.
A psychiatrist, Dr. George Woods, testified that defendant was genetically predisposed to depression and had "environmental difficulties," and that both conditions contributed to her mental state at the time of the charged offenses. Defendant reported to Dr. Woods that between the ages of seven and 14 years, she regularly had been sexually abused by her father. When she was 14 years of age, she became pregnant with her father's child and had an abortion. Defendant and her younger siblings suffered from parental abuse and neglect, and she took care of them. In Dr. Woods' opinion, defendant at the time she committed the crimes suffered from profound depression. She experienced increasing economic pressures and was unable to provide adequately for her family. She felt worthless and hopeless, and had become withdrawn and isolated.
A. The Search of Defendant's Apartment
Defendant contends the trial court erred in denying her motion to suppress the evidence seized during three separate searches of her home and to suppress her confessions, which were obtained by exploiting officers' observations of items that had been viewed during the first assertedly unlawful search.
Defendant's apartment initially was searched pursuant to a warrant obtained by the Los Altos Police Department, which was investigating two commercial burglaries unrelated to the present case. In executing the search warrant, the Los Altos officers were accompanied by officers from the Palo Alto Police Department, who were investigating the homicide of Gleason. While inside defendant's apartment, the Palo Alto officers observed (but did not seize) items in plain view that connected defendant to the Gleason offense. The initial search was suspended and, based upon their observations, the Palo Alto police obtained a second warrant to search the apartment for evidence connecting defendant to the homicide of Gleason. During this second search, the police seized evidence connecting defendant to that killing. In addition, during the interrogation of defendant, officers confronted her with some of the evidence related to the Gleason homicide observed in her apartment during the initial search. Eventually, defendant confessed to killing Gleason and Esparza and to shooting Marks. Based upon defendant's confession, the Redwood City police then obtained a warrant to search for evidence pertaining to the homicide of Esparza and the shooting of Marks. During the third search, the Redwood City police seized additional evidence.
Prior to trial, defendant filed a motion pursuant to Penal Code section 1538.5 to suppress evidence seized during the searches of her home, including items that belonged to the homicide victims, the gun used in all three shootings, and other incriminating physical evidence. Defendant also sought to suppress her confessions, on the ground that they were fruits of the assertedly illegal initial entry and search.
The trial court denied defendant's motion, finding that the initial search warrant obtained by the Los Altos Police Department was supported by probable cause and that, even if it were not, the officers had proceeded in good faith. The trial court further determined that the first search was part of a legitimate investigation and not merely a pretext to look for evidence of other crimes. The court determined that the Palo Alto officers who accompanied the Los Altos officers were present because of their interest in the Gleason homicide, but they properly limited their activities to observing items in plain view. Consequently, the trial court found, no illegality tainted the second and third searches or defendant's confessions. Defendant unsuccessfully challenged the court's ruling by filing a petition for writ of mandate in the Court of Appeal and unsuccessfully renewed her motion to suppress the evidence at trial. Evidence seized from defendant's home was admitted at the trial, as were her confessions.
1. Probable cause for issuance of the warrant
Defendant contends the affidavit supporting the initial Los Altos Police Department search warrant was insufficient for two reasons: (1) it did not establish a sufficient likelihood that contraband or evidence of the subject crimes would be found at defendant's home; and (2) the information in the affidavit was too stale to establish probable cause. These arguments lack merit.
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, 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, 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.)
Probable cause sufficient for issuance of a warrant requires a showing 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.' " (People v. Frank (1985) 38 Cal.3d 711, 744, quoting People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6.) That showing must appear in the affidavit offered in support of the warrant. (People v. Frank, supra, 38 Cal.3d at p. 644.) Defendant urges that the affidavit was deficient in failing to provide the necessary connection between each of the two crimes under investigation and the likelihood of finding evidence in defendant's home.
The affidavit in support of the warrant obtained by the Los Altos Police Department stated the following. Defendant previously had worked as a janitor at Blackard Designs, located at 289 South San Antonio Road, Los Altos, in Santa Clara County. In December of 1991, defendant was fired from her job for stealing checks from offices in which she performed janitorial services. On the night of January 7, 1992, Blackard Designs was burglarized and a single blank check was stolen. On January 7 or 8, 1992, a nearby business, NDN Enterprises, located at 283 South San Antonio Road, was burglarized and two blank checks were stolen. Entry into NDN Enterprises was accomplished by removal of the hinge pins on the exterior door. On January 10, 1992, Christopher Mladineo attempted to cash the Blackard Designs check, which had been made out to him in the amount of $2,000. On March 16, 1992, Mladineo was arrested and told authorities that defendant had given him the check and asked him to cash it for her because she lacked proper identification. On March 16, 1992, officers had Mladineo make a pretextual telephone call to defendant, during which defendant admitted she had stolen the Blackard Designs check. *fn2 On March 19, 1992, an officer spoke with defendant's former employer who reported that, as part of her employment, defendant had a master key to 289 South San Antonio Road, and it was possible she had duplicated that key. As of March 20, 1992, the checks stolen from NDN Enterprises still were outstanding and no attempt had been made to cash them.
The affidavit provided sufficient probable cause to support the belief that defendant had burglarized Blackard Designs and NDN Enterprises and that evidence from those crimes - including a key to Blackard Designs and the checks stolen from NDN Enterprises - could be found at defendant's residence. The affidavit explicitly sets forth strong and specific evidence linking defendant to the Blackard Designs burglary. Based upon all the facts stated in the affidavit, a magistrate making a practical, commonsense decision, in light of all the facts set forth in the affidavit, could conclude with a fair probability that the person who burglarized Blackard Designs was the same person who burglarized NDN Enterprises: the two businesses were located in close proximity to each other, both businesses were burglarized on or about the same date, and in both burglaries blank checks were stolen.
The facts stated in the affidavit established a fair probability that the police would find evidence from the burglaries in defendant's residence. This court noted in People v. Gonzalez (1990) 51 Cal.3d 1179, 1206, that " `[a] number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect's residence is a logical place to look for specific incriminating items. [Citations.]' (People v. Miller (1978) 85 Cal.App.3d 194, 204; see also People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167-168.)." When property has been stolen by a defendant and has not yet been recovered, a fair probability exists that the property will be found at the defendant's home. (See People v. Stout (1967) 66 Cal.2d 184, 192-193; United States v. Maestas (5th Cir. 1977) 546 F.2d 1177, 1180.) Here, defendant at one time possessed a key to the Blackard Designs building. According to defendant's employer, defendant had the opportunity to make a copy of that key. Additionally, the two checks stolen from NDN Enterprises still were outstanding at the time of the search. As the affiant observed based upon his training and experience, "subjects who steal checks with the intent to commit forgeries will maintain possession of those stolen checks until they can be cashed." It was reasonable to conclude that defendant's residence was the most likely place to find these items.
Defendant contends there was no substantial evidence indicating that she possessed a key to Blackard Designs at the time the warrant was obtained. To the contrary, the affidavit contained circumstantial evidence indicating that such a key was in her possession: at one time defendant possessed a master key to Blackard Designs and had the opportunity to duplicate it before her employment there was terminated. The check was stolen during the month after defendant's termination; she had been in possession of the check and had attempted to have it cashed, and there was no indication of forced entry in the burglary of Blackard Designs. A key is the type of item one reasonably could expect a defendant to keep at home. The showing required in order to establish probable cause is less than a preponderance of the evidence or even a prima facie case. (Illinois v. Gates, supra, 462 U.S. at p. 235.) The facts stated in the affidavit are sufficient to establish probable cause that defendant duplicated the master key to 289 South San Antonio Road, used it to gain access to the building following her termination, and continued to keep it in her home.
In the alternative, defendant contends that the information contained in the affidavit was too stale to provide probable cause for issuance of the search warrant, which occurred two months after the alleged burglaries. No bright-line rule defines the point at which information is considered stale. (People v. Brown (1985) 166 Cal.App.3d 1166, 1169.) Rather, "the question of staleness depends on the facts of each case." (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) "If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale." (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)
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. (See, e.g., People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463 [affidavit of a fire marshal indicated that three items of property allegedly destroyed in a fire had been in the defendant's continuous control for many months after the fire, and there was no reason to conclude that the defendant had disposed of such property during the few days between execution of the affidavit and the last day on which the property had been seen in his possession]; People v. Superior Court (Brown), (1975) 49 Cal.App.3d 160, 167 [affidavit established probable cause to believe stolen items were in the defendant's residence one month after a burglary, where stolen items included credit cards and small antiques, "items which would require protection from the elements and fortuitous harm"]; United States v. Jacobs (9th Cir. 1983) 715 F.2d 1343 [affidavit was sufficient to support issuance of a search warrant for articles of clothing worn during a bank robbery, even though nearly four months had passed between the earliest bank robbery in which the clothing had been worn and the issuance of the warrant].) In the present case, the checks from NDN Enterprises still were outstanding two months after the burglary. In view of the nature of the items sought - the outstanding checks still could be forged and cashed, and a key to Blackard Designs still could be useful to defendant - there existed a fair probability that these stolen items remained at defendant's residence despite the passage of time.
2. Execution of the search warrant
Defendant maintains that even if the search warrant obtained by the Los Altos police was valid, the initial search of her home was conducted in an unlawful manner because the Los Altos Police Department delegated execution of the warrant to members of the Palo Alto Police Department, who used the warrant merely as a pretext to gain access to her apartment in order to search for evidence pertaining to the homicides. Defendant contends that the two subsequent searches as well as her confessions were tainted by the illegality of the first search.
On March 20, 1992, detectives from the Palo Alto Police Department held an interagency meeting with law enforcement personnel from several jurisdictions, including Los Altos, Redwood City, and San Carlos. The purpose of the meeting was to coordinate the investigations of several crimes the authorities believed defendant had committed. Later that same day, Palo Alto officers accompanied the Los Altos officers when the latter officers executed the Los Altos warrant at defendant's residence.
The warrant authorized the officers to search for keys, checks in the name of NDN Enterprises, and evidence of occupancy and control of the apartment. Los Altos Police Detective Maculay and Palo Alto Police Sergeant Zook testified that the officers entered defendant's residence for the purpose of serving the Los Altos warrant. Sergeant Zook and Palo Alto Police Detective Hennessy accompanied the Los Altos officers on their search in order to ensure that the latter officers would not overlook, damage, or interfere with any evidence related to the Gleason homicide. At Sergeant Zook's request, the officers conducted a plain view search of the residence. During the search, Sergeant Zook and Detective Hennessy observed in plain view items of evidence related to the Gleason homicide. Upon making these observations, Sergeant Zook requested that the Los Altos officers suspend their search so that the Palo Alto police could seek their own search warrant. No items of evidence were seized from defendant's apartment at that time.
In the meantime, Palo Alto and Redwood City police officers questioned defendant concerning the Gleason homicide. Among other things, the officers confronted her with their observations in her apartment of the items of evidence related to the Gleason homicide. Defendant eventually confessed to killing Gleason. Hours later, she confessed to killing Esparza and to shooting Marks.
At approximately 1:38 a.m. on March 21, 1992, Palo Alto police officers obtained a warrant authorizing them to search defendant's residence for evidence related to the Gleason homicide. The affidavit supporting issuance of that warrant included the information that a pager belonging to Gleason and a key to the building in which she was killed had been observed during the earlier search. While conducting the second search, Palo Alto police officers seized the pager, the key, Gleason's purse, a metal petty cash box missing from Gleason's office, a hand gun, and four spent bullet casings. Between 4:00 a.m. and 5:00 a.m. on the same day, Los Altos police officers completed their search of defendant's residence pursuant to the warrant they had obtained, but did not seize any property.
At approximately 7:00 a.m. on that same day, Redwood City police officers executed their own warrant authorizing them to search defendant's residence for evidence related to the homicide of Esparza and the non-fatal shooting of Marks. The affidavit submitted in support of the issuance of that warrant did not contain any reference to the earlier searches conducted by the Los Altos or Palo Alto Police Departments, but did refer to defendant's confession. Redwood City police officers seized several items of evidence related to the shooting of Marks, including keys and medical supplies.
In ruling on a motion to suppress the fruits of an allegedly unlawful search, the trial court "sits as finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences." (People v. Laiwa (1983) 34 Cal.3d 711, 718.) When reviewing a trial court's denial of a motion to suppress evidence obtained pursuant to a warrant, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Weaver (2001) 26 Cal.4th 876, 924.)
The federal Constitution controls in deciding issues pertaining to the exclusion of evidence under the Fourth Amendment. (In re Lance W. (1985) 37 Cal.3d 873, 890, 896.) "The warrant clause of the Fourth Amendment expressly provides that no warrant may issue except those `particularly describing the place to be searched, and the persons or things to be seized.' [Citations.]" (People v. Bradford, supra, 15 Cal.4th at p. 1291.)
Officers executing a warrant may seize items of evidence or contraband not listed in the warrant but observed in plain view. "The plain-view doctrine permits, in the course of a search authorized by a search warrant, the seizure of an item not listed in the warrant, if the police lawfully are in a position from which they view the item, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object." (People v. Bradford, supra, 15 Cal.4th at pp. 1293-1294.) Thus, "[w]here an officer has a valid warrant to search for one item but merely a suspicion, not amounting to probable cause, concerning a second item, that second item is not immunized from seizure if found during a lawful search for the first item." (Id. at p. 1294.)
In the present case, officers from the Los Altos and Palo Alto Police Departments lawfully entered defendant's residence to execute the warrant obtained by the Los Altos Police Department officers. In the course of surveying the objects in plain view in the common areas of the apartment, the officers observed two items of evidence relating to the Gleason homicide: a key clearly labeled with the address of the office building in which Gleason was killed, and a black pager with a sticker bearing the victim's pager number. Without seizing any items of evidence, the officers suspended the search and sought a second warrant. Therefore, in their application for the second search warrant, the officers properly could recite what they had observed in plain view.
The search initiated by the Los Altos police officers was not rendered invalid by the circumstance that Palo Alto officers accompanied them in anticipation of locating evidence related to the Gleason homicide. Officers from another jurisdiction may accompany officers conducting a search pursuant to a warrant without tainting the evidence (pertaining to crimes that are the subject of their own investigation) uncovered in the process, even when the officers lack probable cause to support issuance of their own search warrant. (United States v. Van Dreel (7th Cir. 1998) 155 F.3d 902, 903-905 [drug task force officers properly accompanied state officers on a search for evidence of hunting-law violations (conducted pursuant to a warrant)]; United States v. Ewain (9th Cir. 1996) 88 F.3d 689, 693 [postal inspector properly accompanied officers on a search conducted pursuant to a warrant]; United States v. Bonds (6th Cir. 1993) 12 F.3d 540, 571 [federal agent accompanied state agents acting under a warrant].) Additionally, the discovery of evidence unrelated to the evidence sought in a warrant need not be inadvertent. "If a police officer has a valid warrant for one item, and `fully expects' to find another, based upon a `suspicion . . . whether or not it amounts to probable cause,' the suspicion or expectation does not defeat the lawfulness of the seizure." (United States v. Ewain, supra, 88 F.3d at p. 693; quoting Horton v. California (1990) 496 U.S. 128, 138-139; accord, People v. Bradford, supra, 15 Cal.4th at p. 1294 [discovery of evidence of a crime in plain view need not be inadvertent].)
Defendant acknowledges these principles, but maintains the search violated her Fourth Amendment rights because the Los Altos police officers obtained a warrant to search for items relating to two burglaries when they actually intended to permit officers from another jurisdiction to conduct a general search for evidence of other crimes. The trial court found that the Los Altos officers were, at the time, conducting a legitimate investigation into the two commercial burglaries committed within their jurisdiction and that they did not seek the warrant related to those burglaries merely as a pretext to facilitate a general search for evidence related to the homicides.
We uphold a trial court's credibility determinations and factual findings on appeal if supported by substantial evidence. (People v. Loewen (1983) 35 Cal.3d 117, 123.) Detective Ronald Barfield of the Los Altos Police Department, who testified at the hearing, described his investigation into the two burglaries, which included arranging the telephone call between Mladineo and defendant intended to obtain an admission of her involvement in one of the burglaries. The telephone call took place on March 16, 1992, and the officers obtained the warrant on the morning of March 20, 1992. Substantial evidence supports the ...