(Super. Ct. No. 06F05220)
The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant, a plastic surgeon, entered pleas of nolo contendere to two counts of sexual exploitation of a patient. Seven additional counts that involved other victims of serious sex offenses were dismissed with a Harvey*fn1 waiver. He was sentenced to three years and eight months in prison. On appeal, he contends his motion to suppress should have been granted because three of the search warrants were not supported by proper oaths and there was no probable cause to search for evidence relating to Angela R. Defendant also challenges his sentence, contending the trial court abused its discretion in imposing the upper term and failed to provide reasons for a consecutive term. We modify defendant's presentence custody credit and otherwise affirm.
Defendant was charged with three counts of penetration with a foreign object on Jamie S.; penetration with a foreign object and sexual exploitation by a physician on Brenda M.; the same two crimes on Jessica M.; and two counts of rape on an unconscious person on Angela R. Defendant agreed to plead nolo contendere to counts five and seven, with a sentencing lid of three years and eight months. He agreed to surrender his medical license and to lifetime registration as a sex offender. The remaining counts would be dismissed with a Harvey waiver.
Defendant accepted the prosecution's factual basis for the plea. As to Brenda M., immediately prior to breast reduction surgery, she was given medication to relax. Defendant entered the room, lifted her leg and raised her hospital gown. He touched her vagina with his bare hand; he pulled apart the labia and his fingers entered her outer vaginal lips. Defendant looked at her vagina. These actions were done for defendant's sexual compulsion, arousal, and gratification.
At an office visit before surgery, defendant told Jessica M. to remove her underwear. He had her hold her labia open while he took pictures of her vagina. He inserted his finger into her vagina. These actions were done for sexual compulsion, arousal, or gratification.
Defendant waived his rights and entered no contest pleas to counts five and seven. The trial court accepted the plea.
Defendant contends the trial court erred in denying his motion to suppress evidence found in several searches of defendant's residence and office.*fn2 He contends the searches were flawed for two reasons. First, the first three search warrants were not supported by proper oaths. Second, there was no probable cause to support a search for evidence relating to Angela R.; there was only suspicion and stale evidence, and description of evidence was overbroad.
A total of four search warrants were issued authorizing the search of defendant's home and office, and certain other places, for photographs and other information relating to numerous alleged victims. Each warrant was prepared by Detective Lisa Bowman and reviewed by a deputy district attorney. The first three warrants began with the same paragraph, differing only as to the number of pages referenced. The paragraph read:
"Sacramento Sheriff's Detective Lisa Bowman, swears under oath that the facts expressed by her in this Search Warrant and Affidavit and the attached and incorporated Statement of Probable Cause, comprising a total of . . . pages, he/she has probable cause to believe and does believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests this Search Warrant be issued." (Bolding omitted.) The fourth search warrant began with the same paragraph, except that it added the words "are true" after "comprising a total of . . . pages." The attached affidavits (serving as the statement of probable cause) were not signed.
Defendant moved to suppress evidence, contending the affiant did not attest to the truth of the facts set forth to support probable cause. In response, the People asserted the omission of the words "are true" from the first three warrants was merely a typographical error and that Detective Bowman swore under oath that the facts were true.
By coincidence, the judge who heard the motion to suppress had been the magistrate who approved the search warrants. He said it was his consistent practice to swear the affiant before approving a warrant. The defense requested a hearing before a different judge at which the detective could testify as to whether she had been sworn. The court agreed.
At the separate hearing, Detective Bowman testified that she was sworn for each warrant. She did not recall the exact wording, but it was "something to the effect of do you swear this is true, in which I answered I do." She testified that after being sworn, she signed the search warrants. No reporter was present when she was sworn.
The court found the affidavits were adequate or the good faith exception of Leon (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677]) ...