(Solano County Super. Ct. No. FCR243938). Donna Stashyn, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant, Antonio Plascencia Pelayo, challenges his conviction and sentence for possession of methamphetamine for sale, possession of ecstasy for sale, and evading a police officer. He challenges the validity of a search warrant for his residence, which was based primarily on information received from confidential informants and contained in a partially sealed affidavit. Pelayo also argues that Penal Code section 654 bars his punishment for possession of both methamphetamine and ecstasy for sale. In the unpublished portion of this opinion, we find no error and affirm.
In a petition for rehearing, Pelayo argues that he is entitled to the benefit of 2009 amendments to Penal Code section 4019 which went into effect on January 25, 2010 pursuant to Senate Bill No. 18 (2009--2010 3d Ex. Sess.) (Senate Bill 18). These amendments increased the good conduct credits available to a defendant for presentence custody in a local detention facility. (Stats. 2009--2010, 3d Ex. Sess. 2009, ch. 28, § 50.) The amended statute became effective after Pelayo was sentenced, but Pelayo argues the amendments must be applied retroactively to all sentences not yet final on appeal. We granted the petition for rehearing and now conclude in the published portion of this opinion that the amendments are retroactive and that Pelayo is accordingly entitled to recalculation of his presentence custody credits. We remand to the trial court to modify its sentencing order and the abstract of judgment to correctly reflect the credits to which Pelayo is entitled.
On June 12, 2007, the superior court issued a warrant authorizing a search of a single-family home at 375 Mountain Meadows Drive in Fairfield and the person of Pelayo for, among other items, methamphetamine and items associated with the sale of methamphetamine. In the supporting affidavit, Solano County Sheriff's Deputy Detective Dax R. West averred that he had extensive experience in narcotics trafficking investigations and arrests, and that, ―Within the past ten (10) days, (S) Antonio Pelayo sold Methamphetamine to a Confidential Informant (CI#2).*fn2 The CI#2 confirmed with me by a photograph of Antonio Pelayo that he was the one who sold him/her Methamphetamine.‖*fn3 An Appendix A to the affidavit provided additional information in support of the warrant. West asked the court to file the appendix under seal in order to protect the confidentiality of informant identity. The court granted the request and issued the warrant.
On June 20, 2007, West observed Pelayo driving on public streets and attempted a traffic stop. Pelayo sped away and led police on an extended car chase that ended only when a police vehicle blocked Pelayo's car. After Pelayo was placed under arrest, officers searched 375 Mountain Meadows Drive pursuant to the warrant. There the officers seized almost two kilograms of methamphetamine, 52 pills containing both ecstasy and methamphetamine, three loaded firearms stored in three different locations in the home, a digital scale, pay/owe sheets, indicia of ownership or residence, $19,375 in U.S. currency, almost $100,000 in jewelry, three fully-paid vehicles, $11,000 in receipts for electronics, $11,000 in receipts for furniture, a $10,000 certificate of deposit, and payment records for a Las Vegas timeshare. Pelayo waived his Miranda rights, acknowledged ownership of the methamphetamine, and admitted that he sold methamphetamine to a select group of about four or five people.
Pelayo was charged by felony complaint, which was later amended to charge Pelayo with possession of methamphetamine and ecstasy while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); counts 1 and 2); possession of methamphetamine for sale and possession of ecstasy for sale (Health & Saf. Code, § 11378; counts 3 and 4); and evading a police officer in willful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a); count 5). As to count 3, it was alleged that Pelayo possessed more than one kilogram of methamphetamine within the meaning of Health and Safety Code section 11370.4, subdivision (b)(1). As to counts 3 and 4, it was alleged that the quantity of the substance possessed was an aggravating sentencing factor within the meaning of Penal Code section 1170.73, and that Pelayo was personally armed with a firearm during the commission and attempted commission of the crimes, within the meaning of Penal Code section 12022, subdivision (c). It was further alleged that counts 1 through 4 were offenses that would render Pelayo ineligible for probation if convicted except in unusual cases pursuant to Penal Code section 1203.073, subdivision (b)(2).
Pelayo moved to unseal the search warrant affidavit, to quash and traverse the search warrant, and to reveal the identity of the confidential informant. The court conducted an in camera review of Appendix A to the search warrant affidavit and concluded it supported issuance of the search warrant. The court ordered the unsealing of a portion of Appendix A that explained how West determined that 375 Mountain Meadows likely was Pelayo's residence. The court specifically declined to unseal the details of police contacts with two confidential informants referenced in the appendix, which might disclose theiridentities.
The excerpt from Appendix A ordered unsealed explained that West did a ―work up‖ on Pelayo and found two vehicles registered in his name at 375 Mountain Meadows Drive in Fairfield (a 2006 Hummer and a 2006 Chrysler), and four vehicles registered in his name at 2267 Atherton Court in Fairfield (a tan Chevrolet pickup with license plate no. 8E80904, a 2004 BIGDG motorcycle, a 1988 Ford, and a 1963 Chevrolet). The address listed on Pelayo's 2005 driver's license was 2267 Atherton Court. Pelayo owned 375 Mountain Meadows Drive, and Esperanza Zavala owned 2267 Atherton Court. The Fairfield Police Department informed West that in December 2006 they responded to an alarm call at 375 Mountain Meadows Drive and a person with the surname Pelayo was the contact person. West drove by 2267 Atherton Court and saw a car there that was registered to Zavala. At 375 Mountain Meadows Drive, the Chevrolet pickup registered to Pelayo was parked in the driveway. Another detective had observed that same pickup truck during surveillance of a narcotics transaction.
Pelayo waived his right to a preliminary hearing. Both parties waived jury trial. On September 25, 2008, following a bench trial, the court convicted Pelayo of counts 3, 4 and 5, and granted the People's motion to dismiss counts 1 and 2.
At sentencing, the court denied Pelayo's motion to strike the Health and Safety Code section 11370.4, subdivision (b)(1) allegation and grant him probation. The court sentenced Pelayo to the low term of 16 months for count 3, a consecutive eight-month term (one-third the middle term) each for counts 4 and 5, a three-year enhancement pursuant to Health and Safety Code section 11370.4, subdivision (b)(1) for count 3, and a three-year enhancement pursuant to Penal Code section 12022, subdivision (c) for count 3. A three-year enhancement pursuant to Penal Code section 12022, subdivision (c) for count 4 was stayed. The total term was eight years, eight months.
A. Challenges to Search Warrant
Pelayo asks this court to conduct an in camera review of the sealed portions of the search warrant affidavit to determine if they were properly sealed and whether the search warrant was supported by probable cause.
The test for determining whether an affidavit establishes probable cause for the issuance of a search warrant is a ―totality-of-the-circumstances analysis.‖ (Illinois v. Gates (1983) 462 U.S. 213, 238 (Gates); see In re Lance W. (1985) 37 Cal.3d 873, 896 [evidence may be suppressed only if it was seized in violation of the federal constitution].) ―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, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular case.‖ (Gates, at p. 238.)
When an affidavit consists in part of an informant's tip to the police, the informant's veracity, reliability and basis of knowledge are relevant considerations in the totality-of-the-circumstances test, but no single factor is determinative. (Gates, supra, 462 U.S. at p. 233.) ―[A] deficiency in one [of these elements] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. [Citations.]‖ (Ibid.) Indicia of reliability include prior accurate reports by the informant, a lack of ulterior motives in making the report, explicit and detailed description of the alleged wrongdoing, the informant's first-hand observation of the alleged wrongdoing, and corroboration by independent police work. (Id. at pp. 233--234, 241.)
When the sufficiency of a search warrant affidavit is challenged on appeal, ―the duty of a reviewing court is simply to ensure that the magistrate had a ‗substantial basis for . . . conclud[ing]' that probable cause existed. [Citation.]‖ (Gates, supra, 462 U.S. at pp. 238--239, only citation omission added.) ―[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's ‗determination of probable cause should be paid great deference by reviewing courts.'
[Citation.]‖ (Id. at p. 236.) Moreover, ― ‗the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' [Citation.] This reflects both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by ...