IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
May 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CAROL LYNETTE REEDOM, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F3609)
The opinion of the court was delivered by: Blease, Acting P. J.
P. v. Reedom
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After the trial court denied defendant Carol Lynette Reedom's motion to suppress evidence and to quash/traverse a search warrant, she pled guilty to possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and admitted a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). The court sentenced defendant to a stipulated seven-year prison term.*fn1
On appeal, defendant asks this court to independently examine the sealed portion of the affidavit submitted in support of the search warrant to assess whether the trial court erred in sealing a portion of the affidavit and concluding that probable cause supported the issuance of the warrant. Defendant also contends she is entitled to receive two days of conduct credits under Penal Code section 4019.
We conclude that the trial court did not err in sealing a portion of the affidavit in support of the search warrant or in concluding that the warrant was based on probable cause. We shall order the abstract of judgment corrected to (1) provide defendant with additional conduct credits under Penal Code sections 4019 and 2933, and (2) reflect that defendant was convicted of Health and Safety Code section 11351.5.
At the hearing in which defendant pled guilty, the parties stipulated that the factual basis for the plea was set forth in Shasta Interagency Narcotics Task Force investigation report No. SH-2009-27. That report is not included in the record on appeal. Accordingly, we draw the following facts from the return of search warrant, which lists items seized in defendant's residence and business on March 23, 2009. In executing the search warrant, authorities found 28.8 grams gross field weight of cocaine base, 14 individually wrapped bindles of cocaine with a combined weight of 8 grams, two digital scales, packaging materials, and .38 caliber ammunition.
Whether Probable Cause Existed for Issuance of the Search Warrant
Defendant contends we must examine the sealed portion of the search warrant affidavit to determine whether the warrant was based on probable cause to believe defendant had narcotics in her residence, vehicles, and business location. The Attorney General agrees that we may examine the sealed record as requested by defendant. We conclude that the public and sealed portions of the affidavit in support of the search warrant, when considered as a whole, established probable cause for the issuance of the warrant.
In the public portion of the search warrant affidavit, Redding Police Officer Brad LaCroix declared that he had probable cause to believe that he would find cocaine in defendant's residence, vehicles, and place of business. The affidavit contained descriptions of defendant's residence, vehicles, and place of business, along with an explanation of how the officer located each through checking utility accounts, DMV records, and business licenses. In pertinent part, the public portion of the affidavit set forth the following facts in support of the warrant's issuance:
"In September, 2008 I received information that Carol Lynette Reedom is in possession of cocaine and has sold cocaine on multiple occasions. CRI-1 advised that Reedom is considered to be one of the bigger cocaine dealers in Shasta County.
"CRI-1 provided me with the license plate number and description of Reedom's vehicle. A DMV check of the plate described the vehicle as a 1994 Mercedes. . . . Further records checks show that Reedom lives at 3520 Court Street, Redding, Ca. I drove by the location to confirm the address and located the 1994 Mercedes parked in the driveway of the residence. [¶] . . . [¶]
"CRI-1 told me he/she has seen Reedom in possession of cocaine multiple times with the most recent being between 3-10-09 and 03-17-09.
"CRI-1 told me Reedom sells the cocaine she obtains from a subject she knows as 'Tone.' CRI-1 was unable to provide me with the subject[']s true identity.
"I conducted a records check of Carol Reedom and located an entry where she was contacted with a subject identified as Anthony Ceaser. I obtained a picture of Ceaser and showed the photograph to CRI-1 and to another CI. Both subjects identified the subject as 'Tone'."
Also in the public portion of the affidavit, Officer LaCroix explained: "I believe it is necessary to keep the identity of the CRI-1 confidential for the physical safety and welfare of the CRI-1, to protect the CRI-1's effectiveness to law enforcement, and because the CRI-1 requested confidentiality as a prerequisite to giving information. [¶] Your affiant has prepared a 'Hobbs Attachment'[*fn2 ] that is attached to this Statement of Probable Cause and is fully incorporated into and made part of this search warrant."
The affidavit recounted defendant's criminal history, which included numerous arrests for possession and sale of narcotics. Anthony Ceaser's criminal history was described as similarly comprised of numerous prior arrests for possession and sale of narcotics.
Based on the public and sealed portions of the affidavit, Officer LaCroix asserted that he had probable cause to believe defendant was selling and trafficking cocaine; keeping narcotics and cash in her residence, vehicles, and place of business; and keeping records of information related to narcotics sales.
The affidavit was dated March 17, 2009. On the same day, the warrant was issued by the superior court.
In July 2009, defendant filed a motion to suppress, traverse, and quash the search warrant. Defendant argued that the public portion of the search warrant affidavit gave no information regarding the reliability of the confidential informant referred to in the unsealed portion of the affidavit. The prosecution opposed the motion but acknowledged that the trial court was required to hold an in camera hearing to examine the sealed portion of the search warrant affidavit.
On August 10, 2009, the trial court reviewed the sealed portion of the affidavit during an in camera hearing in the presence of the prosecutor. At the conclusion of the in camera hearing, the trial court ordered the transcript of the hearing sealed. During the public portion of the hearing, the court denied defendant's motion, explaining:
"I did review the sealed portion of the search warrant affidavit. I noted that there are two pages. I indicated 1 of 1, 2 of 2 - excuse me - 1 of 2 and 2 of 2 and the date and my initials. I determined that the search warrant was properly sealed, that there is a need for the search warrant affidavit to remain sealed.
"In reviewing the affidavit, there was language in there regarding the reliability of the informant, which I found conclusory and insufficient to establish the informants as reliable informants; however, there was sufficient corroboration between the informants and between the work done by the officer and the informants and I'm satisfied there is probable cause to support the issuance of the search warrant.
"Likewise, having reviewed the declarations on the motions to traverse in the light of what was in the sealed affidavit, those declarations are insufficient to warrant a hearing on the motion to traverse. The motion's denied."
Shortly thereafter, defendant filed a motion to reveal the identity of the confidential informant. Defendant argued that the informant's identity was material and therefore disclosure was required. Following a hearing on the motion, the trial court denied the motion.
Defendant subsequently entered her plea.
As the California Supreme Court has explained: "To obtain discovery of protected information such as police files, a criminal defendant must make some preliminary showing 'other than a mere desire for all information in the possession of the prosecution.'" (People v. Luttenberger (1990) 50 Cal.3d 1, 20 (Luttenberger), quoting City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85.) Thus, a defendant must describe the requested documents "'with at least some degree of specificity and must be sustained by plausible justification.'" (Luttenberger, supra, at p. 20.) As the Luttenberger court recognized, "it may be difficult for a defendant to prove police misrepresentations without discovery when a warrant affidavit is based on statements of an unidentified informant" recounted in a sealed document. (Id. at p. 21.) Thus, the high court recognized "the inherent tension between the public need to protect the identities of confidential informants, and a criminal defendant's right of reasonable access to information upon which to base a challenge to the legality of a search warrant." (Hobbs, supra, 7 Cal.4th at p. 957.)
To achieve a "fair balance" between these conflicting interests, a trial court should conduct an in camera review. (Hobbs, supra, 7 Cal.4th at p. 964.) As part of the review, the court should determine whether the affidavit was properly sealed. (Id. at p. 973.) "If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing." (Id. at p. 974.)
"If the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse." (Hobbs, supra, 7 Cal.4th at p. 974.) However, if "the court determines there is a reasonable probability that defendant would prevail on the motion to traverse . . . the district attorney must be afforded the option of consenting to disclosure of the sealed materials, in which case the motion to traverse can then proceed to decision with the benefit of this additional evidence, and a further evidentiary hearing if necessary [citations], or, alternatively, suffer the entry of an adverse order on the motion to traverse. [Citation.]" (Id. at pp. 974-975.)
With respect to the motion to quash, the court should deny the motion if it "determines, based on its review of all the relevant materials, that the affidavit and related materials furnished probable cause for issuance of the warrant under Illinois v. Gates [(1983)] 462 U.S. 213 [76 L.Ed.2d 527]." (Hobbs, supra, 7 Cal.4th at p. 975.) But if the court's review of the relevant materials leads to the conclusion that defendant has a reasonable probability of prevailing on the motion to quash, "then the district attorney must be afforded the opportunity to consent to disclose the sealed materials to the defense . . . or, alternatively, suffer the entry of an order adverse to the People on the motion to quash the warrant. [Citation.]" (Ibid.)
When an appellate court is called upon to review the sufficiency of a search warrant affidavit, the 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 [76 L.Ed.2d 527].) '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 [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.)" (People v. Carrington (2009) 47 Cal.4th 145, 161.)
"'Because unverified information from an untested or unreliable informant is ordinarily unreliable, it does not establish probable cause unless it is "corroborated in essential respects by other facts, sources or circumstances." [Citations.] For corroboration to be adequate, it must pertain to the alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citation.] Courts take a dim view of the significance of "pedestrian facts" such as a suspect's physical description, his residence and his vehicles. [Citation.] However, the corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant. [Citation.] Even observations of seemingly innocent activity provide sufficient corroboration if the anonymous tip casts the activity in a suspicious light. [Citations.]'" (People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264, quoting People v. Johnson (1990) 220 Cal.App.3d 742, 749.) "The fact that two apparently unassociated persons make the same assertion increases the probability that it is true; the mutually-supporting nature of two tips is an important ingredient in the 'probable-cause mix.'" (People v. Terrones (1989) 212 Cal.App.3d 139, 147.) Interlocking tips from different confidential informants enhance the credibility of each. (Id. at p. 149.)
We have reviewed the transcript of the in camera hearing held on August 10, 2009, as well as the public and sealed portions of the search warrant affidavit executed by Officer LaCroix. Based on this review, we conclude that the trial court properly followed the procedures set forth by the Supreme Court in Luttenberger and Hobbs. The court reviewed the affidavit in camera before concluding that good cause existed to order the sealed portion of the affidavit to remain confidential. The court also concluded that the entirety of the search warrant affidavit sufficed to show probable cause for issuance of the warrant. The trial court did not err in reaching these conclusions. Although the trial court found the affidavit's statement about the publically disclosed confidential informant's reliability to be conclusory, the court found sufficient corroboration to establish probable cause. Based on our review of the entirety of the search warrant affidavit, we agree.
The trial court did not err in finding that the public and sealed portions of the search warrant affidavit together demonstrated probable cause to believe that narcotics and related contraband would be found in defendant's residence, vehicles, and place of business.
Penal Code Section 4019 Credits
Defendant contends she is entitled to two days of conduct credit because she served two actual days in custody but received no corresponding credit. We agree.
Penal Code section 4019 was amended, effective January 25, 2010, to increase the rate at which prisoners earn presentence conduct credits. The Attorney General contends the amendment does not have retroactive effect so that defendant is not entitled to the presentence custody credits.
We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes applies apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Sen. Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Consequently, for the reason we conclude the amendment increasing the rate for earning presentence conduct credit, effective January 25, 2010, applies retroactively to defendants sentenced prior to that date, we conclude the new rate provided in Penal Code section 2933 applies retroactively to include defendants who were sentenced prior to January 25, 2010.*fn3
Defendant, having served two actual days in custody, is entitled to two days' conduct credit under Penal Code sections 4019 and 2933.
We also note that the abstract of judgment erroneously lists Health and Safety Code section 11351 as the offense for which defendant was convicted, even though she admitted and was sentenced for violating Health and Safety Code section 11351.5. We shall order the abstract of judgment corrected accordingly.
The judgment is modified to reflect that defendant (1) was convicted of Health and Safety Code section 11351.5, and (2) is entitled to a total of four days of presentence custody credits, consisting of two days of actual custody credit plus two days of conduct credit. As modified, the judgment is affirmed. The superior court is directed to issue an amended abstract of judgment reflecting the modifications, and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: ROBIE, J. MAURO, J.