Filed 4/23/14 P. v. Gaona CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067226

                   v.                                                  (Super. Ct. No. MCR041104B)

ERNESTO GAONA, JR.,                                                               OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Cornell, Acting P.J., Kane, J., and Poochigian, J.
       After the trial court denied his motions to quash and traverse the search warrant,
defendant Ernesto Gaona, Jr. pled no contest to various charges and allegations connected
to his possession of methamphetamine for sale. The trial court sentenced him to three
years in county jail, plus three years eight months of mandatory supervision. On appeal,
he contends the trial court erred in denying his motions to quash and traverse the search
warrant because officers failed to adequately describe the property and intentionally
omitted material facts in the supporting affidavit. We will affirm.
                                     BACKGROUND
The Search Warrant
       Officers sought a warrant to search for evidence of gang methamphetamine
distribution on several premises. Officer Esteves’s affidavit in support of the search
warrant described defendant’s premises as “Ernesto Gaona’s Residence—422 South ‘A’
Street Madera, California.” The affidavit explained that an officer had observed
defendant “going into the back gate behind 422 South ‘A’ Street in Madera” and officers
had used “the GPS feature on [defendant’s] phone and found [him] to be at 422 S. ‘A’
Street in Madera.” Officers had determined that defendant was holding a cohort’s
methamphetamine “at his apartment located at 422 S. ‘A’ Street, Madera, CA.” The
affidavit included a photograph of 422 South “A” Street with the following description:
“[A] peach with brown trim single story residence located on the west side of South ‘A’
Street. The front door is brown and faces east towards ‘A’ Street. The residence has a
detached garage in the backyard. The numbers ‘422’ are displayed on the residence
south of the front door next to the garage door.” Following the photographs and
descriptions of all of the premises, the affidavit stated: “The search of all locations is to
include all: Rooms, attics, basements, garages (attached or unattached) and all parts
therein, the surrounding grounds, storage rooms or sheds, trash containers, outbuildings
of any kind, and any combination safe or locked boxes associated with the above

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described residences. In addition, to access any personal computer data bases and/or
information contained on cellular phones or similar palm type storage devices. Also to
be searched are any vehicles found at the above described locations or which are under
the control of the occupant(s) at these residences, as demonstrated by possession of the
keys.” The affidavit described two vehicles to be searched. Then it listed and described
the five men to be searched. Included was defendant’s photograph, his first and last
name, his date of birth, and his ethnicity, hair color, and eye color.
The Search
       On June 7, 2011, officers executed the search warrant in the detached building at
the back of the property. The search yielded a digital scale, marijuana, and crystal
methamphetamine. The officers did not search the main residence.
Motions to Quash and Traverse the Search Warrant
       On May 18, 2012, defendant moved to quash the search warrant on the ground that
it was facially void because it did not specify with particularity the place to be searched,
or on the alternative ground that the search was excessive in scope. And in the event the
court denied the first motion, defendant also moved to traverse the search warrant on the
ground that the affidavit supporting the warrant was defective by omission of material
facts and the omission was done with reckless disregard and/or based on illegal means,
and thus the affidavit did not provide probable cause for issuance of the warrant.
       People’s Evidence
       At the hearing on the motions, Officer Esteves testified that he was the author of
the affidavit in support of the warrant. He had observed the property at 422 South “A”
Street in Madera. It was “a residence that ha[d] a detached building behind it. The
residence [was] enclosed by wood fencing that close[d] off the—like a normal backyard
would be, from the side of the house all the way back behind the alley.” The detached
building was within that fenced area. There was no fencing between the main residence

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and the detached building. The driveway was only in front of the main residence.
Esteves did not recall seeing any numbers on the buildings or any mailboxes. During the
investigation, officers had seen defendant frequently accessing the property through the
back fence on the alley. GPS tracking located defendant’s cell phone toward the back of
the property. Defendant had not been seen at the front of the property. Esteves explained
that it was common for properties in Madera to contain more than one building. It was
also common for both buildings to be inhabited. Sometimes there was no access between
the two residences; other times, however, there was access between them because the
converted garage did not have running water and the people living there needed access to
the main residence to use the bathroom and kitchen. Before Esteves searched the
detached building in this case, he did not know whether it was equipped with running
water.
         On cross-examination, Esteves testified that the two buildings on the property
appeared to be a residence and a detached garage or shop that had been converted into
living quarters. Officers had done only a fair amount of surveillance on the property
because defendant was very conscious of surveillance and the officers had to watch him
from a distance. They could see him entering the fenced area behind the house. Both the
main residence and the detached building appeared to be occupied, although Esteves did
not mention in his affidavit that the detached building was occupied. Esteves agreed that
in the photograph defense counsel showed him there was a fence between the main
residence and the detached building. Esteves was not present when the warrant was
executed.
         On redirect examination, Esteves explained that the warrant did not specify only
the detached building because he did not know if defendant had access to the main
residence. Esteves had never seen defendant enter the main residence.



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       Investigator Kraemer, who worked for the district attorney’s office, testified that
he conducted surveillance at 422 S. “A” Street. On the day of the search, at about
6:30 a.m., he observed defendant leave the property into the back alley, jog out of the
alley, and get into a black car as a passenger. Officers conducted a traffic stop on the car
and arrested defendant. Defendant was carrying a set of keys in his pocket. One key
unlocked a padlock on the rear fence that defendant had walked through earlier that
morning, and another key unlocked the front door of the detached building. Officers
searched the detached building, but did not enter the main residence.
       On cross-examination, Kraemer explained that defendant was not present when
officers entered the detached building. Kraemer did not know if the detached building
had a different address. The detached building contained a full kitchen with running
water, couches, a television, and clothes. Kraemer ascertained that the detached building
was being used as a residence.
       On redirect examination, Kraemer clarified that the front door of the detached
building was a normal residential door, not a garage door.
       Detective Blehm testified that he was involved in surveillance of 422 South “A”
Street with Kraemer. At the briefing prior to service of the search warrant, the exact
place to be searched was described as “[t]he rear detached converted garage on the
property at 422 South ‘A’ Street.” Blehm searched the black car defendant was riding in
when he was arrested. Blehm found a broken cell phone wedged between the front seat
and the center console near where defendant was seated. The officers served the search
warrant on the detached building, not on the main residence. The officers never
approached or entered the main residence, although an occupant of the main residence
came out to ask what was happening. When Blehm entered the detached building, he
observed it was equipped with both a kitchen and a bathroom.



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       On cross-examination, Blehm testified that he had conducted physical surveillance
on the property three or four times, sometimes from the front of the property and
sometimes from the back. He had been aware of mailboxes, but he typically did not give
mailbox numbers a lot of weight unless he had to. During his surveillance, he thought
different people resided in the main residence and the detached building, and he knew
there was back access to the detached building, front access to the main residence, and
separate parking for each. He did not recall a fence between the two buildings.
       On redirect examination, Blehm explained that he did not notice any numbers on
the detached building during his surveillance. He was never aware that the detached
building was a completely separate address.
       On recross-examination, Blehm agreed that the main residence had its own garage.
       Defense Evidence
       Defense Investigator Crumb was aware of two addresses: 422 South “A” Street
and 422 1/2 South “A” Street. The main residence had an attached garage. The back
building appeared to be a former detached garage with access from the alley. The two
buildings were separated by a fence made of wood pallets. Apparently, there was
separate parking for the detached building. In front of the main residence were two
mailboxes, one for each building.
       Trial Court’s Ruling
       After hearing this testimony, the trial court denied the motion to quash, explaining
that the back building was a converted garage on the same property. The affidavit
properly described the area to be searched, including the detached garage in the backyard.
Prior to the search, the officers had no way to determine that the detached garage had
accommodations such that defendant would not be required to access the main residence.
Only upon entry did the officers discover that the detached garage had facilities sufficient



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for an independent living space without reliance on the main residence. Accordingly, the
officers limited their search to the detached garage.
       The court also denied the motion to traverse, concluding there was no evidence of
any false or misleading action on the part of the officers in preparation and service of the
warrant in this case.
                                       DISCUSSION
I.     Motion to Quash—Lack of Particularity
       A defendant moving to quash a search warrant asserts that the warrant on its face
lacks probable cause. (People v. Hobbs (1994) 7 Cal.4th 948, 975 (Hobbs).) The
probable cause showing must appear in the affidavit offered in support of the warrant.
(People v. Carrington (2009) 47 Cal.4th 145, 161.) Probable cause exists when, based on
the totality of the circumstances described in the affidavit, “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates
(1983) 462 U.S. 213, 238 (Gates); People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
Probable cause “is less than proof beyond a reasonable doubt [citation]; less than a
preponderance of the evidence [citation]; and less than a prima facie showing [citation].”
(People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783.) It requires only a “substantial
chance” rather than an actual showing of criminal activity. (Ibid.; Gates, supra, at
pp. 243-244, fn. 13.)
       “A search warrant must ‘particularly describ[e] the place to be searched.’ (U.S.
Const., 4th Amend.; Cal. Const., art. I, § 13; see also Pen. Code, § 1525.) ‘The manifest
purpose of this particularity requirement was to prevent general searches. By limiting the
authorization to search to the specific areas and things for which there is probable cause
to search, the requirement ensures that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-ranging exploratory searches
the Framers intended to prohibit.’ (Maryland v. Garrison (1987) 480 U.S. 79, 84.) This

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purpose—to limit the search authorization to things and areas for which probable cause
exists and avoid exploratory searches—must be kept in mind in determining the validity
of a warrant containing an inaccurate description of the place to be searched. ‘[T]he
purpose of the exclusionary rule is “… to deter illegal police conduct, not deficient police
draftsmanship ….”’ (People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218, 224.)
[¶] Complete precision in describing the place to be searched is not required. ‘It is
enough if the description is such that the officer with a search warrant can with
reasonable effort ascertain and identify the place intended.’ (Steele v. United States
(1925) 267 U.S. 498, 503.) Many cases have upheld warrant searches despite errors in
the description of the place to be searched. (E.g., People v. Superior Court (Fish), supra,
101 Cal.App.3d 218 [wrong lot number, wrong roof color]; United States v. Turner
(9th Cir. 1985) 770 F.2d 1508 [wrong street address]; United States v. Gitcho (8th Cir.
1979) 601 F.2d 369 [wrong address].) ‘Where one part of the description of the premises
to be searched is inaccurate, but the description has other parts which identify the place to
be searched with particularity, searches pursuant to such warrants have been routinely
upheld.’ (United States v. Gitcho, supra, 601 F.2d at p. 371.) When the warrant contains
an inaccurate description, ‘[t]he test for determining the sufficiency of the description of
the place to be searched is whether the place to be searched is described with sufficient
particularity as to enable the executing officer to locate and identify the premises with
reasonable effort, and whether there is any reasonable probability that another premise
might be mistakenly searched.’ (Ibid.) ‘In applying this test, we are mindful of the
general rule that affidavits for search warrants must be tested and interpreted in a
common sense and realistic, rather than a hypertechnical, manner.’ (United States v.
Turner, supra, 770 F.2d at p. 1510.)” (People v. Amador (2000) 24 Cal.4th 387, 392-393
(Amador).)



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       “Whether the description was sufficient is a question of law, which a reviewing
court decides independently [citation], but the trial court determines the underlying facts,
which determination is subject to the deferential substantial evidence standard of review.
[Citation.] Courts have a ‘strong policy favoring search by warrant rather than upon
other allowable basis.’ [Citations.] For this reason, when, as here, the police do obtain a
warrant, that warrant is presumed valid. ‘Thus if the defendant attempts to quash a
search warrant, as defendant here seeks to do, the burden rests on him.’ [Citation.] A
defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete
bears the burden of alleging and then proving the errors or omissions. [Citations.]”
(Amador, supra, 24 Cal.4th at p. 393.)
       Defendant contends the affidavit did not establish probable cause to search the
detached building because it failed to particularly describe it. He asserts that the affidavit
instead described the main residence and provided probable cause to search only the main
residence. But the affidavit clearly described the property to be searched as the main
residence and any outbuildings, including a detached garage. This description was
sufficient to include the detached building on this property, even if it did not include an
address for it. The affidavit stated that defendant had been seen entering the property and
his cell phone had been present on the property. The affidavit stated that defendant was
storing methamphetamine for a cohort. Thus the affidavit provided probable cause to
believe the buildings on that property contained evidence of a crime. Defendant failed to
carry his burden to show a lack of probable cause.
II.    Motion to Traverse—Factual Omissions
       A defendant moving to traverse a search warrant “mount[s] a subfacial challenge,
i.e., attack[s] the underlying veracity of statements made on the face of the search warrant
application.” (Hobbs, supra, 7 Cal.4th at p. 965.) A defendant may move to traverse a
search warrant “by showing that the affiant deliberately or recklessly omitted material

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facts that negate probable cause when added to the affidavit. (Franks v. Delaware (1978)
438 U.S. 154, 171-172 [Franks]; People v. Gibson (2001) 90 Cal.App.4th 371, 381-
382.)” (People v. Eubanks (2011) 53 Cal.4th 110, 136.) If the defendant makes a
successful preliminary showing, the trial court must conduct an evidentiary hearing
pursuant to Franks. (People v. Thuss (2003) 107 Cal.App.4th 221, 230.) If the
defendant meets the preponderance of the evidence standard, the warrant must be voided
and any evidence seized pursuant to it must be suppressed. (Ibid.)
       But “[a]n affidavit need not disclose every imaginable fact however irrelevant. It
need only furnish the magistrate with information, favorable and adverse, sufficient to
permit a reasonable, common sense determination whether circumstances which justify a
search are probably present. [Citations.] [¶] [A]n affiant’s duty of disclosure extends
only to ‘material’ or ‘relevant’ adverse facts.” (People v. Kurland (1980) 28 Cal.3d 376,
384, fn. omitted.)
       Here, defendant contends the affidavit misled the magistrate because it failed to
disclose critical facts about the true nature of the property. Defendant explains that prior
to the search, officers knew the target of their search was the detached building on the
property, and they knew it had been converted into living quarters and was being
occupied as a separate residence by people other than those who occupied the main
residence, but these facts were not included in the affidavit in support of the search
warrant. Defendant claims the magistrate was deceived into believing that the property
contained only one residence and that the detached building was an unoccupied structure,
and thus the magistrate was falsely led to believe that the main residence was the only
residence to be searched.
       If we were to assume error here, we would reconstruct the affidavit, adding the
facts that defendant alleges were intentionally omitted. (People v. Gesner (1988) 202
Cal.App.3d 581, 591 [“In the case of an improper omission, the remedy is to add the

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omission and retest the facts for probable cause”].) As a result, the affidavit would
additionally state that the detached building on the property had been converted into
living space and was inhabited by people other than those living in the main residence,
and that the detached building was the target of the search. These facts would not
undermine a finding of probable cause to search the detached building because defendant
was frequently seen accessing the property through the back alley and his cell phone was
located at the back of the property. He was never seen in front of the property. The
officers, however, were not certain whether the detached building was outfitted with
running water; accordingly, they did not know whether defendant had access to the main
residence and may have stored illegal substances there as well.1 We conclude that even if
the omitted facts were material and intentionally omitted, the trial court did not err in
denying the motion to traverse the warrant.
                                      DISPOSITION
       The judgment is affirmed.




1      Defendant asserts that the trial court was wrong when it found that “‘prior to
entering into the back structure, there was no way for the authorities to determine … that
there were sufficient accommodations.’” Defendant continues: “Prior to obtaining the
warrant, the police knew full well that the rear building was being used as a separate
residence.” But defendant only selectively quotes the trial court, which plainly and
expressly stated that the officers could not determine whether there were sufficient
accommodations in the detached building such that defendant would not be required to
enter the main residence to use the bathroom and kitchen.


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