Filed 10/9/14
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION FIVE


THE PEOPLE,                                      B253036

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. GA082341)
        v.

REECE J. CLARK,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Dorothy L. Shubin, Judge. Affirmed.
        Julie Schumer, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Michael R. Johnsen, Supervising Deputy Attorney General, Mary Sanchez and
Garett A. Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION

       Defendant and appellant Reece Clark (defendant) pleaded guilty to possession of
cocaine and a short-barreled shotgun. On appeal, defendant contends that the trial court
erred when it denied his motion to suppress evidence pursuant to Penal Code section
1538.5 (section 1538.5). According to defendant, the affidavit in support of the search
warrant did not establish probable cause to search his residence because, although it
showed that he possessed and was cultivating marijuana, it did not address whether the
marijuana was possessed or cultivated for medical purposes.1
       We hold that, even though there was no showing on the issue of whether the
marijuana was possessed or cultivated for medical use, the affidavit in support of the
search warrant established probable cause to search. Therefore, the trial court did not err
in denying the suppression motion. Accordingly, we affirm the judgment of conviction.


                               FACTUAL BACKGROUND2
       The statement of probable cause in support of the search warrant provided the
following facts: Los Angeles County Sheriff’s Department Deputy Michael Gaisford had
extensive training and experience in, inter alia, the field of street level drug sales,
including drug recognition. Within 15 days prior to preparing his statement of probable
cause, Deputy Gaisford received information from a confidential informant that “an
illegal in-door marijuana grow was established in the City of Pasadena” in a residence on




1      Defendant also maintains that the search cannot be justified by the good faith
exception established in United States v. Leon (1994) 468 U.S. 897. Based on our
determination on the probable cause issue discussed below, we do not address that
contention.
2      Because, as explained below, we review a ruling on the sufficiency of the
evidence in support of a search warrant based solely on the content of the affidavit upon
which the warrant is based, we limit the factual statement to the facts set forth in the
affidavit submitted in support of the warrant, as well as certain facts contained in the
return to the search warrant which are included to provide context.

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East Orange Grove Boulevard. The confidential informant told the deputy that defendant
lived at that residence and that he maintained the “marijuana grow” in the garage. After
questioning the informant, the deputy formed the opinion that he “demonstrated a strong
and thorough knowledge regarding marijuana cultivation.”
       Based on the information provided by the informant, Deputy Gaisford initiated a
narcotics investigation at the Pasadena address provided by the informant. The deputy
and a detective conducted a surveillance of that residence and observed two vehicles
parked there that, according to the informant, defendant owned. They then saw defendant
exit the front door of the residence, access one of the vehicles, and reenter the residence.
       During their surveillance, the deputy and the detective observed the following
facts that were “indicative of an illegal indoor marijuana grow”: From the public
sidewalk, they could smell a strong odor of “unburnt” marijuana emitting from the
garage; according to Deputy Gaisford, “unburnt” marijuana had a “very distinct and
pungent” odor that could be easily recognized by both law enforcement and members of
the public; Deputy Gaisford also observed a “window mount” air conditioner installed in
one of the walls in the garage; although it was a cold winter night when they conducted
their surveillance, the air conditioner was running continuously, which appeared unusual
because, in the deputy’s experience, most garages were “under insulated” and usually the
coldest part of the house; based on the deputy’s training and experience concerning
marijuana cultivation, specifically indoor “marijuana grows,” he knew that an indoor
marijuana grow room needed a dedicated air conditioner of some sort to cool the room
down because the “grow lights” generated an “enormous amount” of heat; because the
heat and other by-products from the indoor grow needed to be vented out of the room, it
was common for illegal marijuana cultivators to vent the room and turn on the grow
lights and air conditioners during night and early morning hours to avoid detection by law
enforcement.
       In addition to conducting the surveillance, Deputy Gaisford conducted a criminal
background check on defendant and discovered that he had been convicted of various
criminal offenses. He also conducted a registration check on the two vehicles he

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observed at the property, and both were registered to defendant at the address of the
property.
       Based on these facts, Deputy Gaisford formed the opinion that the location was
being used to grow, store, and sell marijuana on an ongoing basis. He also formed the
opinion that marijuana was present at the location, that a continuing drug operation was
being conducted at the location, and that the on-site supply of marijuana and narcotic
contraband would be replenished after being harvested and sold.
       The return to the search warrant contained additional information. Deputy
Gaisford conducted a search of the property a day after the search warrant was issued.
During the search, the deputy seized 246 marijuana plants, several bags of harvested
marijuana, cocaine, a 12-gauge pump-action shotgun with 25 rounds, a .25 caliber semi-
automatic pistol with live rounds, digital scales, drug packaging, paperwork, mail, a cell
phone, and an assortment of marijuana grow equipment, including grow lights, light
ballasts, a carbon dioxide generator, atmosphere controllers, charcoal air filters, blowers,
a water filtration system, and water-based plant nutrients and plant food.


                           PROCEDURAL BACKGROUND
       In July 2011, prior to the preliminary hearing, defendant filed a motion to traverse
the search warrant and suppress evidence pursuant to section 1538.5 on the ground that
the search warrant was issued without probable cause. In October 2011, a magistrate
heard and denied the motion.
       In November 2011, the trial court conducted a preliminary hearing and ordered
that defendant be held to answer. In December 2011, the District Attorney filed the
original information.
       In June 2012, prior to arraignment, defendant renewed his motion to suppress. In
September 2012, the trial court heard and denied that second motion.
       In March 2013, defendant filed another motion to suppress pursuant to section
1538.5, which motion is the subject of this appeal. The motion was based on the newly
asserted ground that there was no probable cause to support the search warrant because

                                              4
defendant’s cultivation of marijuana was legal under the Compassionate Use Act—
Health and Safety Code section 11362.5—and there were no facts presented in support of
the search warrant that defendant was cultivating marijuana for illegal purposes. In May
2013, the trial court heard and denied the motion. In July 2013, the defendant filed a
motion to reconsider his March 2013 motion to suppress. In August 2013, the trial court
heard and denied that motion.
       Defendant thereafter pleaded guilty to one count of possession of cocaine in
violation of Health and Safety Code section 11350, subdivision (a)—count 5—and one
count of possession of a short-barreled shotgun in violation of former Penal Code section
12020, subdivision (a)(1), now section 33215—count 8. On count 5, defendant was
admitted to a diversion program for a period of two years and ordered to pay various
fines and fees. The trial court suspended imposition of sentence on count 8 and placed
defendant on probation for three years under various terms and conditions. Defendant
timely appealed and thereafter requested the issuance of a certificate of probable cause,
which request the trial court granted.


                                         DISCUSSION


       A.     Standard of Review and Applicable Legal Principles
       The California Supreme Court recently summarized the standard of review
governing a ruling on a motion to suppress evidence based on a search. “‘“In ruling on a
motion to suppress, the trial court must find the historical facts, select the rule of law, and
apply it to the facts in order to determine whether the law as applied has been violated.
We review the court’s resolution of the factual inquiry under the deferential substantial-
evidence standard. The ruling on whether the applicable law applies to the facts is a
mixed question of law and fact that is subject to independent review.” [Citation.] On
appeal we consider the correctness of the trial court’s ruling itself, not the correctness of
the trial court’s reasons for reaching its decision. [Citations.]’ (People v. Letner and



                                               5
Tobin (2010) 50 Cal.4th 99, 145 [112 Cal.Rptr.3d 746, 235 P.3d 62] (Letner).)” (People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364-365.)
       The California Supreme Court has also explained that “[i]n reviewing a search
conducted pursuant to a warrant, an appellate 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 [99 Cal.Rptr.2d 1, 5 P.3d
68], citing Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 103 S.Ct.
2317].)” (People v. Carrington (2009) 47 Cal.4th 145, 161.) The court amplified, “‘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.) [¶]
Probable cause sufficient for issuance of a warrant requires a showing that makes it
‘“substantially probable that there is specific property lawfully subject to seizure
presently located in the particular place for which the warrant is sought.”’ (People v.
Frank (1985) 38 Cal.3d 711, 744 [214 Cal.Rptr. 801, 700 P.2d 415], quoting People v.
Cook (1978) 22 Cal.3d 67, 84, fn. 6 [148 Cal.Rptr. 605, 583 P.2d 130].) That showing
must appear in the affidavit offered in support of the warrant. (People v. Frank, supra,
38 Cal.3d at p. 744.)” (Ibid.) Moreover, in reviewing the sufficiency of the facts upon
which the magistrate or judge based his or her probable cause determination, we consider
only the facts that appear within the “‘four corners of the warrant affidavit.’” (People v.
Costello (1988) 204 Cal.App.3d 431, 451, quoting United States v. Rubio (9th Cir. 1983)
727 F.2d 786, 795.)
       As stated in People v. Frank, supra, 38 Cal.3d at page 744, “The affidavit must set
forth more than the ‘“mere conclusion”’ of the affiant that the items sought are located on
the premises to be searched. (Aguilar v. Texas (1964) 378 U.S. 108, 113 [12 L.Ed.2d

                                              6
723, 728, 84 S.Ct. 1509], overruled on other grounds Illinois v. Gates[, supra,] 462 U.S.
[at p.] 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317].) The affidavit must present the
magistrate with facts indicating the circumstances underlying the affiant’s belief in order
that the magistrate may judge their persuasiveness for himself. (Ibid.; Giordenello v.
United States (1958) 357 U.S. 480, 486 [2 L.Ed.2d 1503, 1509, 78 S.Ct. 1245];
Nathanson v. United States (1933) 290 U.S. 41, 47 [78 L.Ed. 159, 161, 54 S.Ct. 11].)”


       B.     Analysis
       Defendant contends that although the affidavit in support of the search warrant
may have established that he was cultivating marijuana, it did not show that he was doing
so illegally. According to defendant, to justify the search warrant, Deputy Gaisford was
required to include facts in his affidavit showing that defendant’s conduct in cultivating
marijuana was not in conformance with the Compassionate Use Act3 and the Medical
Marijuana Program Act.4 Defendant bases this contention on the Supreme Court’s
decision in People v. Mower (2002) 28 Cal.4th 457 (Mower), which, defendant argues,
requires an affirmative factual showing in support of a search warrant that a defendant’s
cultivation of marijuana is not in compliance with the Compassionate Use Act.




3      Subdivision (d) of Health and Safety Code section 11362.5 provides, “Section
11357, relating to the possession of marijuana, and Section 11358, relating to the
cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver,
who possesses or cultivates marijuana for the personal medical purposes of the patient
upon the written or oral recommendation or approval of a physician.”

4       Health and Safety Code section 11362.7 et seq. Section 11362.775 of that
statutory scheme provides, “Qualified patients, persons with valid identification cards,
and the designated primary caregivers of qualified patients and persons with
identification cards, who associate within the State of California in order collectively or
cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of
that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360,
11366, 11366.5, or 11570.”

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       Defendant’s contention is based on his interpretation of the following language in
Mower, supra, 28 Cal.4th 457: “To be sure, law enforcement officers must have
probable cause before they lawfully may arrest a person for any crime. (See, e.g., People
v. Campa (1984) 36 Cal.3d 870, 879 [206 Cal.Rptr.114, 686 P.2d 634]; see also Pen.
Code, § 836.) Probable cause depends on all of the surrounding facts (see, e.g., People v.
Campa, supra, 36 Cal.3d at p. 879 [206 Cal.Rptr.114, 686 P.2d 634]), including those
that reveal a person’s status as a qualified patient or primary caregiver under [Health and
Safety Code] section 11362.5[, subdivision] (d).” (Id. at pp. 468-469.) Defendant reads
that language as imposing an affirmative duty on investigating law enforcement officers
to inquire about a suspect’s status as a qualified patient or primary caregiver under the
Compassionate Use Act. We disagree with defendant’s interpretation of the quoted
language from Mower.
       In Mower, supra, 28 Cal.4th 457, the defendant was charged with possession and
cultivation of marijuana in violation of Health and Safety Code sections 11357 and
11358. (Id. at p. 465.) On appeal and on review before the Supreme Court, the defendant
contended that Health and Safety Code “section 11362.5[, subdivision] (d) grants a
defendant ‘complete’ immunity from prosecution, shielding him not only from
prosecution but even from arrest, and requiring reversal of his convictions because of the
alleged failure by law enforcement officers to conduct an adequate investigation prior to
his arrest.” (Id. at pp. 466-467.)
       In response to the defendant’s contention, the Supreme Court framed the issue
before it as follows: “The initial question that we address in this case is whether [Health
and Safety Code] section 11362.5[, subdivision] (d) grants a defendant ‘complete’
immunity from prosecution, an immunity that assertedly would require reversal of a
conviction for possession or cultivation of marijuana whenever law enforcement officers
fail to conduct an adequate investigation of the defendant’s status as a qualified patient or
primary caregiver prior to his or her arrest.” (Id. at 467.)
       The court in Mower, supra, 28 Cal.4th 457 concluded that Health and Safety Code
“section 11362.5[, subdivision] (d) does not confer the ‘complete’ immunity from

                                              8
prosecution claimed by defendant. But [the court] also conclude[d] that, in light of its
language and purpose, [Health and Safety Code] section 11362.5[, subdivision] (d)
reasonably must be interpreted to grant a defendant a limited immunity from prosecution,
which not only allows a defendant to raise his or her status as a qualified patient or
primary caregiver as a defense at trial, but also permits a defendant to raise such status by
moving to set aside an indictment or information prior to trial on the ground of the
absence of reasonable or probable cause to believe that he or she is guilty.” (Id. at p.
464.)
        In reaching this conclusion, the court in Mower, supra, 28 Cal.4th 457 explained,
“[C]ontrary to defendant’s position, the requirement that law enforcement officers have
probable cause for an arrest does not mean that [Health and Safety Code] section
11362.5[, subdivision] (d) must be interpreted to grant such persons immunity from
arrest. It is well established that immunity from arrest is exceptional, and, when granted,
ordinarily is granted expressly. (See generally 4 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Pretrial Proceedings, § 10, pp. 208-209, citing, among other provisions,
Pen. Code, § 1334.4 [providing that ‘[i]f a person comes into this State in obedience to a
subpoena . . . , he shall not, while in this State pursuant to the subpoena . . . , be subject to
arrest . . . in connection with matters which arose before his entrance into this State under
the subpoena’].) Plainly, [Health and Safety Code] section 11362.5[, subdivision] (d)
does not expressly grant immunity from arrest. [¶] Neither can [Health and Safety
Code] section 11362.5[, subdivision] (d) reasonably be read to grant immunity from
arrest by implication. As the proponents of Proposition 215[5] declared in their rebuttal to
the argument of the measure’s opponents: ‘Police officers can still arrest anyone for
marijuana offenses.’ (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument




5       “At the General Election held on November 5, 1996, the electors approved an
initiative statute designated on the ballot as Proposition 215 and entitled Medical Use of
Marijuana. In pertinent part, the measure added [Health & Safety Code] section 11362.5,
the Compassionate Use Act of 1996.” (Mower, supra, 28 Cal.4th at p. 463.)

                                                9
against Prop. 215, p. 61.) Even when law enforcement officers believe that a person who
‘possesses or cultivates marijuana’ is a ‘patient’ or ‘primary caregiver’ acting on the
‘recommendation or approval of a physician,’ they may . . . have reason to believe that
person does not possess or cultivate the substance ‘for the personal medical purposes of
the patient’ ([Health & Saf. Code,] § 11362.5[, subd.] (d)). [¶] Thus, we conclude that
section [Health and Safety Code] 11362.5[, subdivision] (d) does not grant any immunity
from arrest, and certainly no immunity that would require reversal of a conviction
because of any alleged failure on the part of law enforcement officers to conduct an
adequate investigation prior to arrest.” (Id. at p. 469, italics added.)
       The holding in Mower, supra, 28 Cal.4th 457 on the immunity from arrest issue
does not state or imply that law enforcement officers seeking a search warrant have an
affirmative duty to investigate a suspect’s status as a qualified patient or primary
caregiver under the Compassionate Use Act prior to requesting that a warrant issue. To
the contrary, Mower makes clear that, although the Compassionate Use Act provides a
defense at trial or a basis to move to set aside the indictment or information prior to trial,
it does not shield a person suspected of possessing or cultivating marijuana from an
investigation or arrest. Therefore, given the holding in Mower, that Act cannot be
interpreted to impose an affirmative duty on law enforcement officers to investigate a
suspect’s status as a qualified patient or primary caregiver under the Act prior to seeking
a search warrant.
       Our conclusion in this regard is supported by the decision in People v. Fisher
(2002) 96 Cal.App.4th 1147 (Fisher). In that case, a law enforcement officer participated
in a “flyover” of the defendant’s property and observed at least three marijuana plants
behind the defendant’s home. (Id. at p. 1149.) Based on that observation, a search
warrant for the defendant’s residence issued. (Ibid.) But before officers could execute
the warrant, the defendant showed them a “‘certificate’” purporting to be a physician’s
permission to possess marijuana for medical use in accordance with Health and Safety
Code section 11362.5. (Ibid.) Because the officers believed a crime may nevertheless
have been committed, they searched the residence and found additional marijuana, a cane

                                              10
sword, and ammunition. (Ibid.) The defendant was charged with various counts of
possession of marijuana, as well as possession of a sword and ammunition. (Id. at p.
1150.)
         Defendant filed a motion to suppress pursuant to section 1538.5 on the ground
that, once they were shown the certificate, the officers no longer had probable cause to
search. (Fisher, supra, 96 Cal.App.4th at p. 1150.) The trial court denied the motion.
Defendant was subsequently convicted on the charges unrelated to the possession of
marijuana. (Ibid.)
         On appeal, the defendant contended that once he showed the officers the
certificate, they had a duty to secure the premises without searching it and to conduct a
further investigation into his medical marijuana defense. (Fisher, supra, 96 Cal.App.4th
at p. 1151.) In rejecting the defendant’s argument, the court in Fisher reasoned: “‘“It is
well established that where a statute first defines an offense in unconditional terms and
then specifies an exception to its operation, the exception is an affirmative defense to be
raised and proved by the defendant. [Citations.] . . . “‘[T]he question is whether the
exception is so incorporated with, and becomes a part of the enactment, as to constitute a
part of the definition, or description of the offense; for it is immaterial whether the
exception or proviso be contained in the enacting clause or section, or be introduced in a
different manner. It is the nature of the exception and not its location which determines
the question. . . .”’ Thus, where exceptions or provisos are not descriptive of the offense,
or define it, but rather afford a matter of excuse, ‘they are to be relied on in [the]
defense.’ [Citations.]”’ (People v. Spry (1997) 58 Cal.App.4th 1345, 1364 [68
Cal.Rptr.2d 691].) [¶] Nowhere in [Health and Safety Code] section 11362.5 is any
criminal offense defined. Subdivision (d) of [Health and Safety Code] section 11362.5
does no more than refer to the offenses already defined in [Health and Safety Code]
sections 11357 (possession of marijuana) and 11358 (cultivation of marijuana) and
creates an exception to their applicability. Because the exception provided by
subdivision (d) does not constitute any part of the definition of the offenses described by
[Health and Safety Code] sections 11357 and 11358, the exception constitutes an

                                              11
affirmative defense to be proven by the defendant at trial.” (Fisher, supra, 96
Cal.App.4th at pp. 1151-1152.)
       The court in Fisher, supra, 96 Cal.App.4th 1147 therefore concluded that the
“[d]efendant’s claim to the officers that he had a certificate that allowed him to legally
possess marijuana for medicinal purposes asserted an affirmative defense. Investigation
of the truth and legal effect of defenses to criminal charges is what motions and trials are
for; to hold otherwise would create disorder and confusion. The defendant’s argument
has no merit.” (Id. at p. 1152.)
       Here, unlike in Fisher, supra, 96 Cal.App.4th 1147, Deputy Gaisforth had no
information concerning defendant’s status as a qualified patient or primary caregiver
under either the Compassionate Use Act or the Medical Marijuana Program Act. Thus,
the conclusion in Fisher—that investigating officers have no duty when obtaining and
executing a search warrant to investigate a suspect’s status as a patient or caregiver under
the Compassionate Use Act—applies with even more compelling force in this case
because Deputy Gaisford had no factual basis upon which to conclude that defendant
may have had an affirmative defense to what were otherwise the criminal offenses of
possessing and cultivating marijuana and had no independent duty to conduct an
investigation into such a defense. Therefore, based on the facts set forth in the search
warrant affidavit, including the fact that Deputy Gaisford detected a strong odor of
“unburnt” marijuana emanating from defendant’s garage and that defendant was
operating the air conditioning at night to avoid detection by police, the search warrant in
issue was based on probable cause and the suppression motion was properly denied. (See
State v. Davis (Wash.App. 2014) 331 P.3d 115, 119 [medical use affirmative defense
does not invalidate probable cause]; State v. Senna (Vt. 2013) 79 A.3d 45, 50-51 [trial
court properly considered the odor of fresh marijuana emanating from the defendant’s
home in assessing probable cause to search, even if a medical marijuana exemption could
be invoked as a defense]; State v. Fry (Wash. 2010) 228 P.3d 1, 7, fn. 3 [when an officer




                                             12
trained and experienced in marijuana detection actually detects the odor of marijuana,
that provides sufficient evidence to constitute probable cause to search even if defendant
had medical documentation purporting to authorize his use].)


                                     DISPOSITION


       The judgment of conviction is affirmed.
       CERTIFIED FOR PUBLICATION




                                                 MOSK, J.


We concur:



              TURNER, P. J.



              KRIEGLER, J.




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