Filed 7/30/14 P. v. Duke CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B250784

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA129438)
         v.

LEE BRENT DUKE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Josh M.
Fredericks and Raul A. Sahagun, Judges. Affirmed.
                                                         ______
         Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Mark E.
Weber, Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       Lee Brent Duke appeals from the judgment entered after a jury convicted him
of possession of methamphetamine under Health and Safety Code section 11377,
subdivision (a). He contends the trial court erred by denying his motion to suppress
evidence and by failing to grant him probation pursuant to Proposition 36. We reject his
contentions and thus affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On March 20, 2013, Andrew Fox, a police officer with nine years experience,
applied for a warrant to search for illegal drugs at a residence and the trailer parked on its
driveway, in Duke’s car and on his person. The officer had narcotics training and had
investigated and arrested several hundred drug sellers. In an affidavit supporting
issuance of the warrant, Officer Fox stated that: (1) an anonymous concerned citizen
had informed him that Duke recently moved into the residence and was selling
methamphetamine at the property; (2) a confidential informant reported witnessing
Duke sell a half-ounce of methamphetamine “within the last week” at the residence;
(3) in a surveillance on February 27, 2013, Officer Fox had observed Duke appear to
“have access to the residence” to “come and go,” as well as to the trailer; (4) Officer Fox
had discovered cooking directions for methamphetamine on Duke’s person several
months earlier; and (5) Duke had numerous prior convictions for the sale of
methamphetamine. Given this information, Officer Fox believed that Duke was
connected to drug sales at the residence and trailer. Based on the affidavit, the magistrate
issued the warrant as requested.
       Before executing the warrant, Officer Fox conducted three additional surveillances
of the residence and the trailer. In the first two surveillances, he observed Duke coming
and going from the residence to the trailer and other people briefly stopping by the trailer.
In the third surveillance, which lasted three to four hours, Officer Fox saw Duke remove
a black canvas bag with a sparkle design from his car and take it into the trailer. The
officer also observed six or seven people come and go from the property at different
times. During the visits, the individuals spoke with Duke on the driveway, Duke then



                                              2
went into the trailer, and the individuals followed by walking up to the trailer. All the
visits were brief, each lasting no more than five minutes.
       On March 27, 2013, Officer Fox and his partner executed the search warrant.
His partner conducted a traffic stop of Duke. Officer Fox obtained a key from Duke’s
key ring in the car ignition. The key opened the trailer door. In the trailer, Officer Fox
found the black canvas bag with the sparkle design, which contained a digital scale,
$1,200 cash in small denominations, and 178 grams of methamphetamine packaged in
four separate plastic bags. At the foot of the bed, the officer retrieved an envelope
addressed to Nina and James, care of Lee (Duke’s first name) and Nina, at the residence
and a cellular telephone bill, dated November 23, 2012, addressed to Duke at a different
address. Officer Fox also saw men’s clothing and the word “Lee” written in several
locations inside the trailer.
       On April 29, 2013, the People filed an information charging Duke with one count
of possession for sale of a controlled substance in violation of Health and Safety Code
section 11378. The information specially alleged three prior-prison-term enhancements
under Penal Code section 667.5, subdivision (b). Duke pleaded not guilty and denied the
special allegations. He moved to suppress evidence of all items seized from the trailer,
arguing that the evidence was obtained in violation of his constitutional rights. The trial
court denied Duke’s motion.
        A jury found Duke not guilty of possession for sale of a controlled substance in
violation of Health and Safety Code section 11378, but guilty of the lesser included
offense of possession of a controlled substance in violation of Health and Safety Code
section 11377, subdivision (a). Duke waived his right to a jury trial on the special
allegations. The trial court found that Duke had served two prior prison terms within the
meaning of Penal Code section 667.5, subdivision (b), but dismissed the third special
allegation under that provision. The court sentenced him to five years in county jail: the
upper term of three years for the Health and Safety Code section 11377, subdivision (a),
violation plus two one-year enhancements under Penal Code section 667.5, subdivision
(b). Duke timely appealed.

                                             3
                                      DISCUSSION
1.     The Trial Court Did Not Err By Denying the Motion to Suppress
       The Fourth Amendment to the United States Constitution “‘proscribes all
unreasonable searches and seizures’” (Robey v. Superior Court (2013) 56 Cal.4th 1218,
1224) “‘to safeguard the privacy and security of individuals against arbitrary invasions
by government officials’” (People v. Banks (1993) 6 Cal.4th 926, 934). “‘Under the
Fourth Amendment, a[] [judicial] officer may not properly issue a warrant to
search a private dwelling unless he can find probable cause therefor[e] from facts or
circumstances presented to him under oath or affirmation.’” (Illinois v. Gates (1983)
462 U.S. 213, 276.) As a result, the exclusionary rule is a “‘judicially created remedy’”
that attempts to deter illegal searches and seizures by generally barring the prosecution
from introducing evidence obtained without probable cause. (Davis v. U.S. (2011)
131 S.Ct. 2419, 2427-2428.)
       Even if probable cause is lacking, however, evidence seized during a search
executed on the warrant need not be suppressed if the officer performing the search had a
good faith belief that the affidavit established probable cause for the warrant. Under the
good faith exception to the probable cause requirement, the United States Supreme Court
has held that the exclusionary rule should not be applied when evidence was “obtained by
officers acting in reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be unsupported by probable cause.” (U.S. v. Leon
(1984) 468 U.S. 897, 900, 913 (Leon).) Application of the good faith exception is
determined by an objective standard assessing “whether a reasonable and well-trained
officer ‘would have known that his affidavit failed to establish probable cause and that he
should not have applied for the warrant.’” (People v. Camarella (1991) 54 Cal.3d 592,
605-606 (Camarella).) The standard requires that an officer have conducted more than a
“mere ‘bare bones’ investigation” (Camarella, at pp. 606-607; see also Leon, at p. 926;
People v. French (2011) 201 Cal.App.4th 1307, 1318-1319) and possess “‘“reasonable
knowledge of what the law prohibits”’” (French, at p. 1324).



                                             4
       Duke argues that the trial court erred by denying his motion to suppress the
evidence seized from the trailer. He contends that probable cause did not support
issuance and execution of the warrant and that the good faith exception to the
exclusionary rule does not apply because the affidavit was “‘“so lacking in indicia of
probable cause”’ that it would be ‘“entirely unreasonable”’ for an officer to believe such
cause existed.” (Camarella, supra, 54 Cal.3d at p. 596, italics omitted.) Whether or not
probable cause existed for the warrant, the good faith exception to the exclusionary rule
supports the denial of Duke’s suppression motion.
       Under the objective standard for evaluating the good faith exception, Officer Fox’s
affidavit was not “‘“so lacking in indicia of probable cause”’” that it was “‘“entirely
unreasonable”’” for him to believe such cause existed. (Camarella, supra, 54 Cal.3d
at p. 596, italics omitted.) Officer Fox, well trained in the field of narcotics
investigations, conducted more than a “mere ‘bare bones’ investigation.” (Id. at p. 606.)
After receiving a tip from a concerned citizen, the officer contacted a confidential
informant, who reported that he had witnessed Duke selling methamphetamine at the
residence within a week before the warrant application. The officer also surveilled the
residence and trailer before applying for the warrant. He discovered that Duke had prior
convictions for the sale of methamphetamine and several months earlier had possessed
directions for cooking methamphetamine. After issuance of the warrant, Officer Fox
undertook three additional surveillances of the residence and trailer before executing the
warrant and observed conduct suggesting possible narcotics sales. Based on the multiple
components of the investigation, as well as Officer Fox’s personal experience in
investigating several hundred narcotics cases, it was not unreasonable for him to believe
the affidavit established probable cause.
       The instant case is similar to Camarella in which our Supreme Court held that the
good faith exception applied when the officer had conducted more than a “mere ‘bare
bones’ investigation” and thus was reasonable in relying on the warrant. (Camarella,
supra, 54 Cal.3d at pp. 606-607.) In Camarella, after receiving information from an
anonymous citizen, the officer confirmed the criminal activity with an untested

                                              5
confidential informant, checked the suspect’s records for prior drug possession
and verified that the suspect lived at the given address. (Id. at pp. 597-599.) This
investigation was sufficient to establish good faith, even if an argument could be
made that the affidavit presented a “close or debatable question” on probable cause.
(Id. at p. 606.) In the instant case, Officer Fox did more than the officer in Camarella
and thus was not unreasonable in relying on the warrant.
       Duke argues that good faith is lacking because Officer Fox did not do everything
he could before applying for the warrant, such as arranging a controlled buy, to ensure
probable cause. The relevant question, however, is not whether a reasonable officer
could have undertaken an additional investigation to support the affidavit. Rather, the
question is whether the officer would have known that the affidavit, as it existed when
presented to the magistrate, was legally insufficient without additional corroboration.
(Camarella, supra, 54 Cal.3d at p. 606.) Thus, even if Officer Fox could have taken
additional measures to further corroborate the information in his affidavit, the possibility
of a greater investigation does not establish, as Duke suggests, a lack of good faith.
       Duke also cites People v. Hulland (2003) 110 Cal.App.4th 1646, 1656, to argue
that an officer’s reliance on a warrant that had only a “‘paltry showing’” of probable
cause is not objectively reasonable, particularly when “‘the affiant is also one of the
executing officers.’” The “‘paltry showing’” in Hulland was due to the officer waiting
52 days after a controlled buy of marijuana before seeking a search warrant and failing,
during that 52-day delay, to determine whether defendant’s criminal activity was
continuing. (Id. at pp. 1649-1650, 1655-1656.) In addition, although the warrant was for
the search of a residence, the controlled buy took place in a parking lot in a different city,
rendering the officer’s suspicion that the defendant was keeping drugs at the residence
unreasonable. (Id. at pp. 1653, 1655-1656.) Officer Fox’s affidavit, however, did not
present a “‘paltry showing,’” but rather provided sufficient information for a reasonable
and well-trained officer to believe probable cause existed. (Id. at p. 1656.) In contrast to
Hulland, Officer Fox applied for a warrant within a week of the confidential informant
witnessing Duke’s drug sale at the residence and three weeks after conducting a

                                              6
surveillance of the residence and trailer. Furthermore, unlike the affidavit in Hulland,
Officer Fox’s affidavit gave numerous reasons to believe that Duke’s criminal activity
took place at the searched locations. Thus, Officer Fox’s position as both the affiant and
executing officer does not preclude application of the good faith exception.
       Duke also contends that information in Officer Fox’s affidavit was stale because
the directions for cooking methamphetamine were found on Duke’s person several
months before application for the warrant and the date that Officer Fox received the
information from the concerned citizen was not provided in the affidavit. The affidavit,
however, reasonably supported that criminal activity was continuing at the location.
Officer Fox conducted his surveillance of the residence less than a month before issuance
of the warrant. The confidential informant saw Duke selling methamphetamine within a
week of issuance of the warrant. The three additional surveillances of the residence and
trailer after issuance of the warrant but before its execution demonstrate that Officer Fox
ensured the information provided by the tipsters was fresh when he executed the warrant.
Under these circumstances, an objectively reasonable and well-trained officer could have
believed the information was sufficiently fresh to support probable cause. (People v.
Tuadles (1992) 7 Cal.App.4th 1777, 1798 [staleness not based on reviewing court’s
agreement “with the officer’s assessment [that] the information is sufficiently fresh,”
but on “whether a reasonable, well-trained officer would know the facts are too stale
to support a determination of probable cause”]; see also Camarella, supra, 54 Cal.3d
at p. 606.)
2.     The Trial Court Did Not Err By Finding Duke Ineligible for Proposition 36
       Probation
       Penal Code 1210.1, subdivision (a), which codified portions of Proposition 36,
provides that “any person convicted of a nonviolent drug possession offense shall receive
probation.” (See People v. Guzman (2005) 35 Cal.4th 577, 585.) As relevant, nonviolent
drug possession is “possession for personal use” of a controlled substance. (Pen. Code,
§ 1210, subd. (a); In re Ogea (2004) 121 Cal.App.4th 974, 982.) The defendant has the




                                             7
burden to prove possession for personal use. (People v. Barasa (2002) 103 Cal.App.4th
287, 296; see also People v. Dove (2004) 124 Cal.App.4th 1, 10.)
       Duke contends that, because the jury found him not guilty of possession for sale of
a controlled substance, he qualified for probation under Proposition 36. According to
Duke, the trial court had no authority to disregard the jury’s verdict and sentence him to
jail by concluding, based on a preponderance of the evidence, that he did not possess the
drugs for personal use.1 His argument is contrary to federal and state authority.
       In U.S. v. Watts (1997) 519 U.S. 148, 157, the United States Supreme Court held
that a sentencing court may consider conduct for which the jury acquitted the defendant
“so long as that conduct has been proved by a preponderance of the evidence.” An
acquittal by the jury is not a finding of fact because a jury acquittal is not proof that a
defendant is innocent but rather only of the “‘existence of a reasonable doubt as to his
guilt.’” (Id. at p. 155.) Thus, “‘an acquittal . . . does not preclude the Government from
relitigating an issue . . . by a lower standard of proof.’” (Id. at p. 156.)
       California courts have applied this principle to Proposition 36 determinations.
Our courts have held that a jury acquittal on the charge of possession for sale of a
controlled substance does “not bind the trial court” because the acquittal means only
that the jury was not convinced beyond a reasonable doubt of the possession for sale.
(People v. Dove, supra, 124 Cal.App.4th at p. 11.) A court has “‘the inherent authority’”
to consider trial testimony in determining a defendant’s eligibility for Proposition 36
probation (People v. Glasper (2003) 113 Cal.App.4th 1104, 1113) so long as it makes
such a determination by a preponderance of the evidence (Dove, at p. 11). In the instant
case, regardless of the jury verdict, the court had the “‘inherent authority’” to determine
by a preponderance of the evidence that Duke was ineligible for Proposition 36 probation


1
       Duke does not challenge the sufficiency of the evidence supporting the trial
court’s conclusion by a preponderance of the evidence that he did not possess
methamphetamine for personal use but merely argues that the trial court did not have the
power to make such a determination.


                                               8
because he did not possess the methamphetamine for personal use.2 (Glasper,
at p. 1113.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                ROTHSCHILD, P. J.
We concur:



               CHANEY, J.



               MILLER, J.*




2
        As the trial court recognized, this case is distinguishable from People v. Harris
(2009) 171 Cal.App.4th 1488, 1494, in which the jury received an instruction and made
an affirmative finding that defendant’s possession was for personal use within the
meaning of Penal Code section 1210, subdivision (a). In contrast, here, the jury was not
instructed on Penal Code section 1210 and did not make an affirmative finding of
possession for personal use, but merely determined that Duke was not guilty of
possession for sale.
*
        Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                            9
