APPEAL from a judgment of the Superior Court of Yolo County, Thomas Edward Warriner, Judge. Affirmed with directions. (Super. Ct. No. 04-6100).
The opinion of the court was delivered by: Nicholson, Acting P. J.
CERTIFIED FOR PUBLICATION
In exchange for a maximum prison term, defendant Christopher Allen Jones, Sr., pleaded no contest to several counts of criminal conduct and admitted a prior serious felony conviction and a prior prison term. To comply with the plea agreement and avoid the sentencing requirements of the "Three Strikes" law, the trial court struck the prior serious felony conviction and prior prison term. After doing so, the court sentenced defendant to the maximum term allowed by the plea agreement. It imposed consecutive sentences for two of the counts and concurrent sentences for the remaining counts.
On appeal, defendant contends that (1) the information in an affidavit supporting a search warrant was stale and therefore did not supply probable cause, (2) the court's imposition of consecutive and concurrent terms violated Penal Code section 654's prohibition on double punishment, and (3) he was deprived of effective assistance of counsel because his trial counsel did not argue against consecutive sentencing. After briefing was completed, we invited the parties to submit supplemental briefs concerning (4) whether defendant is eligible for additional presentence custody credit pursuant to recent amendments to Penal Code section 4019.
We conclude that (1) the information in the affidavit supporting the search warrant was not stale and supported the trial court's probable cause finding, (2) defendant is barred from arguing that the sentence violated Penal Code section 654 because the trial court sentenced within the maximum term negotiated in the plea agreement, (3) defendant was not deprived of effective assistance of counsel, and (4) defendant may be eligible for additional presentence custody credit if the prior serious felony conviction is stricken for that purpose.
Therefore, we affirm the conviction but remand for further proceedings concerning presentence custody credit.
Defendant was charged by information with two counts of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1);*fn1 counts 1 & 2); two counts of possessing a prohibited firearm (§ 12020, subd. (a)(1); counts 3 & 4); being a felon in possession of ammunition (§ 12316, subd. (b)(1); count 5); using another's personal identifying information to obtain credit, goods, or services (§ 530.5, subd. (a); count 6); and receiving stolen property (§ 496, subd. (a); count 7). The information also alleged that defendant had a prior serious felony conviction (§ 667, subds. (c) & (e)(1)) and served a prior felony prison term (§ 667.5, subd. (b)).
Pursuant to a plea agreement negotiated with the prosecutor and accepted by the court, defendant pleaded no contest to all counts and admitted the enhancement allegations in return for a three-year eight-month "lid" or maximum term in sentencing. At the plea hearing, defense counsel noted that the plea was entered with the understanding that defendant was free to argue for probation and would be able to appeal regarding the denial of his motion to suppress evidence. It was understood that, although defendant admitted the prior serious felony conviction and prior prison term, the court would strike those in order to sentence within the plea agreement's maximum term.
The trial court sentenced defendant to a total state prison term of three years eight months. To do so, the court struck both the prior serious felony conviction and prior prison term findings. The court imposed the upper term of three years for count 1 (felon in possession of firearm) and a consecutive eight months (one-third the middle term) for count 2 (also felon in possession of firearm). As for the remaining five counts, the court imposed concurrent middle terms.
Defendant petitioned the trial court for a certificate of probable cause, seeking to challenge the sentence on appeal based on section 654. The trial court initially denied the petition, but later reversed itself and granted the petition after this court issued a Palma letter. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
The parties stipulated that the factual basis for the plea was contained in (1) the police report, (2) subpoenas with accompanying documents, and (3) the preliminary hearing transcript. Our recitation of the facts is based on those sources.
Karen Flann's purse was stolen in March 2002. In July 2004, she received letters from collection agencies concerning overdue accounts with AT&T and Liberty Wireless. Someone had used her date of birth and social security number to open cell phone accounts with those companies. The name and address on the AT&T account were defendant's.
Flann received a letter from Sprint Wireless in July 2004, informing her that her application for phone service was denied. She had not applied to Sprint Wireless for phone services.
The Davis Police Department obtained a search warrant and executed it at defendant's residence. Officers found two sawed-off shotguns, along with 20 shotgun shells, in a bag under a bed in the master bedroom. They also found the cell phone associated with the AT&T account obtained using Flann's identifying information.
After defendant was arrested, officers found five different California driver's licenses in his car.
The AT&T account was open from November 18, 2003, to April 17, 2004. The Liberty Wireless account was opened May 9, 2004, but there was no indication concerning when the Liberty Wireless account was closed.
In September 2004, the Davis Police Department sought and obtained a warrant to search defendant's residence. Using the warrant, officers searched the residence. Defendant made a motion to suppress the evidence discovered in the search, asserting that the search warrant was invalid because the information in the affidavit was stale. The trial court denied the motion. After a motion for reconsideration, the court again denied the motion.
On appeal, defendant contends that the information provided in the affidavit in support of the application for the search warrant was stale and therefore did not provide probable cause for the warrant. Therefore, he argues, issuance of the warrant violated his Fourth Amendment rights.
The contention is without merit. Under the circumstances of this case, the information was not stale.
Detective Ilya Bezuglov of the Davis Police Department filed an affidavit in support of the application for a search warrant on September 20, 2004. In all material respects, the facts in the affidavit were the same as those recounted above, up to obtaining the search warrant and searching the apartment.
Appellate review of a trial court determination of probable cause on a motion to suppress evidence under section 1538.5 is a two-step process. Express or implied findings of fact are upheld if supported by substantial evidence. We then use independent judgment to determine whether those facts establish probable cause. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) Courts should not invalidate search or arrest warrants by imposing hypertechnical requirements rather than a common sense approach to probable cause. (United States v. Ventresca (1965) 380 U.S. 102, 108 [13 L.Ed.2d 684, 689].)
"Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case. [Citations.] 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. [Citation.]" (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652 (Hulland).)
"Although there is no bright line rule indicating when information becomes stale [citation], delays of more than four weeks are generally considered insufficient to demonstrate present probable cause. [Citation.] For example, a delay of 34 days between a controlled sale of heroin and the officer's affidavit for the search warrant has been held insufficient to establish present probable cause. [Citation.] Longer delays are justified only where there is evidence of an activity continuing over a long period of time or the nature of the activity is such as to justify the inference that it will continue until the time of the search. [Citation.]" (Hulland, supra, 110 Cal.App.4th at p. 1652.)
Even though the information concerning defendant's illegal uses of Flann's identity did not indicate that he had engaged in the activity in the four weeks before issuance of the search warrant, the information concerning ongoing identity theft provided probable cause. According to the affidavit, Flann's purse was stolen in 2002. In November 2003, someone began illegally using Flann's identity. As late as July 2004 or thereabouts, someone used Flann's identity in an attempt to open a Sprint Wireless account. This ongoing operation, unlike a solitary drug buy, provided probable cause in September 2004, when the warrant was issued, that evidence of crime would be found in defendant's residence. (See People ...