Filed 2/26/13 P. v. Cathey CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C065248

                   Plaintiff and Respondent,                                     (Super. Ct. No. 07F00933)

         v.

TYWANA MARIE CATHEY et al.,

                   Defendants and Appellants.




         Defendants, Tywana Marie Cathey (Cathey) and Christopher Mason, Jr. (Mason),
while formerly married, remained linked in an on-going drug trafficking operation for
which they were arrested, charged, and tried by jury.
         Mason was convicted of possession of cocaine base for sale (Health & Saf. Code,
§ 11351.5; count one), possession of a firearm by a convicted felon (Pen. Code, former §
12021, subd. (a)(1), now § 29800, subd. (a)(1); count three),1 and possession of
ammunition while prohibited from owning or possessing a firearm (former § 12316,


1        Further statutory references are to the Penal Code unless otherwise indicated.

                                                             1
subd. (b)(1), now § 30305, subd. (a)(1); count four). He was further found personally
armed with a firearm in the commission of count one. (§ 12022, subd. (c).) A count of
cultivation of marijuana ended in deadlock. (Health & Saf. Code, § 11358; count two).
       Cathey was convicted on counts one and two and found to be personally armed
with a firearm in the commission of count one.
       In a bifurcated proceeding, the jury found that Mason had six prior serious felony
convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior narcotics convictions (Health
& Saf. Code, § 11370.2, subd. (a)), and that he had served two prior prison terms (§
667.5, subd. (b)).
       Mason was sentenced to state prison for a determinate term of 11 years plus a
consecutive indeterminate term of 25 years to life.2 The mistried count two was
dismissed in the interest of justice in light of the sentence.
       Cathey was sentenced to state prison for nine years eight months. Execution of
sentence was suspended and Cathey was placed on probation for five years on conditions
including 365 days‟ incarceration.3
       On appeal, Mason contends the trial court erred when it denied his motion to
traverse the search warrant pursuant to Franks v. Delaware (1978) 438 U.S. 154 [57
L.Ed.2d 667, 678] (Franks). Cathey contends her trial counsel rendered ineffective



2      Mason was awarded 1194 days‟ custody credit and 596 days‟ conduct credit. The
relevant 2010 amendment to section 2933 does not entitle Mason to additional conduct
credit because he has prior convictions for serious felonies. (Former § 2933, subd. (e)(3)
[as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
3      The probation report indicates that Cathey is entitled to 59 days‟ custody credit
and is silent as to conduct credit. The recommendation was to suspend execution of
sentence conditioned on service of “a maximum period of incarceration as to Count 2.”
This appears to be an inartfully phrased waiver of conduct credit as a means of
maximizing that incarceration. The relevant 2010 amendment to section 2933 does not
override the waiver or entitle Cathey to additional credit.

                                               2
assistance when he expressly declined to join in Mason‟s Franks motion. We conclude
the Franks motion lacked merit, and Cathey‟s trial counsel‟s refusal to join the meritless
motion could not have been prejudicial, and therefore affirm.
                                         FACTS
       Prosecution Case-in-Chief
       On January 30, 2007, several teams of law enforcement officers served a search
warrant at residences on Delta Street (Delta) and Rio Linda Boulevard (Rio Linda) in
Sacramento. The warrant authorized the searches of both residences, a gold Cadillac
Escalade, and defendants Cathey and Mason.
       Delta
       Upon entering Delta, officers found and detained both defendants and three other
persons. In the kitchen, officers found and seized a glass plate containing 4.02 grams of
cocaine base and a razor blade; a baggie containing 6.87 grams of cocaine base; a glass
pipe for smoking narcotics; a digital gram scale; a spoon with cocaine residue; six
walkie-talkies; and a box of shotgun shells. Mason‟s fingerprints were found on the glass
plate and the digital scale.
       In the front room, officers found and seized three surveillance cameras and DVD‟s
explaining how to grow marijuana.
       In the southeast bedroom, officers found and seized 0.43 grams of cocaine; 0.74
grams of marijuana; and two boxes of shotgun shells. Officers also found documents and
papers belonging to, or relating to, Cathey and Mason. Pacific Gas and Electric bill was
addressed to Cathey at Delta.
       In the northeast bedroom, officers found and seized a semiautomatic pistol loaded
with six rounds. In this bedroom, too, officers found documents related to Cathey and
Mason.
       In a bathroom, officers found and seized a pipe for smoking narcotics.



                                             3
      In the Escalade parked at Delta, officers found cash; documents related to Cathey
and Mason; and a stun gun.
      A search of Mason‟s person yielded cash and a key ring with two keys. One key
operated the front door lock at Delta, and the other unlocked a safe found at Rio Linda.
After Mason was placed in a patrol car, an officer observed he appeared to have several
small white objects in his mouth. When the officer tried to reach in Mason‟s mouth, the
objects were gone. In the officer‟s experience, it is common for people who possess
cocaine base to conceal it in their mouths. Cocaine base is not water soluble and cannot
be ingested by swallowing it.
      Diane Cutrer was present at Delta when the search warrant was executed. She
consented to a search of her person. An officer found 0.09 grams of cocaine in her
pocket. Cutrer told the officer that she had come to Delta to purchase cocaine. Cutrer
testified at trial that she had purchased cocaine from Mason and Cathey on several prior
occasions. On the day of the search, she had come to Delta and found cocaine on the
kitchen table waiting for her. Mason and Cathey were at the table. Cutrer paid $7 for the
cocaine.
      Rio Linda
      Meanwhile, other officers searched Rio Linda, which was four miles away from
Delta. Three juveniles were present at Rio Linda; two of them had the last name Mason.
      In a bedroom, officers found a safe containing a large plastic baggie. Inside the
baggie were three smaller baggies containing cocaine base in the amounts of 27.3 grams,
27.4 grams, and 27.1 grams. The safe also contained $178 cash. In the same bedroom,
officers found documents and papers belonging to, or relating to, Cathey and Mason.
Some items were addressed to Delta or to a different address in Sacramento County; a
child‟s report card was the only item addressed to Mason at Rio Linda. In the bedroom
and bathroom, officers found numerous plastic baggies, some with the corners ripped off.



                                            4
         In a different bedroom, officers found 31 immature marijuana plants and a grow
light.
         Other Evidence
         Detective Jason Oliver, an expert in the sale and possession of narcotics, testified
it was common for sellers of narcotics to keep their supply in one location and conduct
sales at a different location. Detective Oliver opined -- based upon the amounts of
cocaine base found at the two locations; the presence of packaging material; the presence
of equipment such as the digital scale, the razor blade, the safe, walkie-talkies, and the
surveillance cameras; and the presence of firearms -- that the cocaine base was possessed
for the purpose of sales.
         The parties stipulated, for purposes of counts three and four, that Mason was
previously convicted of a felony.
         Defense
         Mason presented the testimony of Rosio Gutierrez, who lived next door to Rio
Linda. Gutierrez testified Cathey was her neighbor, but that she did not know Mason.
         Cathey rested without presenting evidence or testimony.
                                        DISCUSSION
                                               I
         Mason contends the trial court violated his Fourth and Fourteenth Amendment
rights by denying his motion to traverse the search warrant pursuant to Franks. We are
not persuaded.
         Background
         A defendant may challenge a search warrant after the warrant has been issued and
executed by showing the supporting affidavit contained deliberate falsehoods or
statements made with reckless disregard for the truth (Franks, supra, 438 U.S. at p. 171),
or that “the affiant deliberately or recklessly omitted material facts that negate probable



                                               5
cause when added to the affidavit [citations]” (People v. Eubanks (2011) 53 Cal.4th 110,
136).
        In January 2007, Detective Oliver executed an affidavit in support of a warrant to
search Delta and Rio Linda. In the affidavit, Detective Oliver described the investigation
that had been ongoing since November 2006.
        In the following summary of the affidavit, the statements Mason alleges to be
deliberate falsehoods appear in bold font. The facts Mason alleges to have been
recklessly omitted appear in bold italic font.
        Between November 19, 2006, and December 2, 2006, two confidential informants
(CI#1 and CI#2), on different occasions, told law enforcement that an African-American
male known to them as “Tattoo” was dealing cocaine base out of Delta. Both informants
reported that Tattoo drove a gold Cadillac Escalade and parked it in front of Delta. CI#2
reported that Tattoo had multiple ounces of cocaine base at the residence. Between
November 30, 2006, and December 6, 2006, officers observed a third confidential
informant (CI#3) walk from Delta to a vehicle that was parked in front. The officers
contacted CI#3 about a Vehicle Code violation, searched him, and found cocaine on his
person. CI#3 stated that he had just purchased the cocaine from an African-American
man inside Delta. CI#3 reported that this man had four ounces of cocaine at Delta and
was converting it to cocaine base. CI#3 said the man drove the Escalade that was then
parked south of Delta.
        On December 1, 2006, two officers saw the Escalade leave Delta. The officers
made a traffic stop of the Escalade for a Vehicle Code violation. Cathey was the driver,
and Mason was the passenger. A records check showed that Mason had been discharged
from parole in May 2006, and that his last parole address was Delta. The Escalade was
registered to Cathey or Dorothy Redman. Further checking revealed that the Sacramento
Municipal Utility District (SMUD) listed Cathey‟s address as Delta.



                                                 6
       On December 11, 2006, detectives conducted surveillance at Delta. At 2:55 p.m.,
a gold Escalade arrived at the residence and then left within five minutes. The driver
matched Cathey‟s description and the passenger matched Mason‟s description.
       Detectives followed the Escalade to the area of El Camino and Howe, where a
white man met with the occupants. The Escalade then proceeded to Rio Linda. “The
occupants of the [Escalade] entered the front door without knocking or waiting to
be let in.”
       Around 6:09 p.m., detectives saw the Escalade leave Rio Linda. The driver
matched Mason‟s description, and the other occupant was an unidentified teenager.
Detectives followed the Escalade and saw the driver stop in a parking lot for a two-
minute meeting with the driver of another car. Detective Oliver noted that such a short
meeting in a parking lot was consistent with a drug transaction.
       The Escalade then proceeded at high speed, at times approaching 95 miles per
hour, to San Lorenzo, California, an approximately two-hour trip. The Escalade stopped
at a San Lorenzo residence where a person entered the car on the passenger side. Within
five minutes the Escalade left the residence, entered a freeway, traveled an unspecified
distance, left the freeway, and returned to where it had picked up the passenger.
       Within 30 minutes thereafter, the Escalade proceeded back to Sacramento at
speeds not exceeding 75 miles per hour and parked at Rio Linda. “The occupants of the
Cadillac entered [Rio Linda] through the front door without knocking or waiting to
be let in.” The detectives ended the surveillance. Detective Oliver noted that this trip
was consistent with a trip to pick up narcotics from a supplier.
       The next morning, Detective Oliver returned to Rio Linda and saw the Escalade
was parked where officers had last observed it. Detective Oliver learned the SMUD
account for Rio Linda was in the name of Chianti Mason.
       On January 3, 2007, detectives conducted additional surveillance. Around 7:30
p.m., they saw Cathey drive the Escalade from Rio Linda to Delta with a male African-

                                             7
American passenger. Within five minutes, the Escalade began to leave. A person
approached the passenger side of the Escalade and made a hand-to-hand transaction with
the passenger. A surveilling detective believed the activity was consistent with a
narcotics transaction. Cathey made several stops in the Escalade before returning to Rio
Linda. “Cathey entered the front door without knocking or waiting to be let in.”
        While conducting surveillance on January 16, 2007, around 5:30 p.m., Detective
Oliver saw the Escalade arrive at Rio Linda. He saw Mason “exit the passenger side of
the vehicle and enter the front doorway of [Rio Linda] without knocking or waiting
to be let in.”
        Detective Oliver and another detective (Detective Nasca) then planned an
operation in which a confidential reliable informant (CRI) would attempt to buy drugs at
Delta. The CRI was shown a color photograph of Mason. “CRI was furnished with pre-
recorded official funds with which to purchase drugs/narcotics. From this point on, the
CRI was kept under constant surveillance by [Detective] Nasca or other officers.”
The CRI was followed to the area of Delta and kept under surveillance until he or she
approached Delta. A short time later, the CRI left Delta and met officers at a
predetermined meeting place. The CRI gave officers a substance that tested positive for
cocaine. The CRI confirmed that he or she had used funds provided by the officers to
purchase cocaine from Mason inside Delta. Although the affidavit fails to so state, no
surveillance team member visually observed the CRI entering or exiting from Delta.
        Detective Oliver stated his beliefs that Mason was involved in narcotics sales at
Delta, resided at Rio Linda, and probably stores evidence of narcotics sales at Rio Linda.
Detective Oliver believed Cathey was a coconspirator.
        A search warrant was signed on January 25, 2007, and executed on January 30,
2007.




                                              8
       Mason attempted without success to challenge the search warrant prior to the
preliminary examination. In July 2008, Mason was held to answer on all charges except
a weapon enhancement on count two.
       In August 2008, Mason filed a motion to traverse the affidavit in support of the
search warrant and to suppress evidence, along with exhibits in support. Mason claimed
Detective Oliver‟s affidavit “contains reckless and intentional misrepresentations,
actions, and omissions without truth to mislead the magistrate.” Mason later filed a
supplement, consisting of a declaration by his investigator, Lori Brown.
       Specifically, Mason alleged the statement that Mason was seen entering the front
door of Rio Linda without knocking or waiting to be let in was a reckless falsehood, in
that it would have been “physically impossible” to make that observation without
standing directly in front of the door. Mason also alleged the failure to “disclose” that
officers did not actually observe the CRI enter and exit the door of Delta was a reckless
omission in that the affidavit did state the CRI was under constant surveillance.
       The prosecution filed an opposition to Mason‟s motion, and Mason filed a reply.
The prosecution then filed an amended opposition to the motion.
       The motion was heard on September 3, 2008. After hearing arguments of counsel,
the trial court (Judge Bakarich) denied the motions regarding the search warrant. The
court explained: “I‟ve read the search warrant. I‟ve got a statement of a person the
officers see leaving that house on Delta Street, found to be in possession of drugs, stating
that he bought the drugs from the person in that house, your client. He knows him, and
he knows that he drives a Cadillac Escalade. [¶] I‟ve got surveillance by officers who
follow that vehicle from Delta . . . to . . . Rio Linda . . . on numerous occasions. The
vehicle is left there overnight. The vehicle, your client is seen getting into that vehicle on
one of these occasions. [¶] The person who subscribes to SMUD at that address has the
same last name as your client. There‟s a nexus between [Rio Linda], [Delta], your client
and the selling of drugs. Just from that alone. And it‟s all within the month of January, I

                                              9
believe, January of ‟07. [¶] . . . [¶] You have to show that the affidavit includes false
statements made knowingly and intentionally or with reckless disregard for the truth and,
two, the most important part, that the allegedly false statement is necessary for the
finding of probable cause. [¶] So based on what you‟ve told me today, if I were to
exclude those portions of the search warrant that they saw the occupants of the Escalade
enter [Rio Linda] without knocking or without using a key, if I were to exclude all of
those in the affidavit, I would still find that there‟s sufficient probable cause for the
finding of a search warrant on all those addresses. [¶] Even if I were to exclude the
controlled buy, I would still find that there‟s sufficient probable cause for the issuance of
a search warrant but I‟m not excluding the controlled buy.”
       In March 2009, Mason filed a motion to suppress evidence, traverse and quash the
search warrant or, in the alternative, reconsider the prior ruling. The motion was heard in
May 2009. The trial court (Judge Davidian) found that Mason had received a “full and
fair hearing by Judge Bakarich” and that there had been sufficient ground for the ruling
against Mason.
       Analysis
       “A defendant has a limited right to challenge the veracity of statements contained
in an affidavit of probable cause made in support of the issuance of a search warrant. The
trial court must conduct an evidentiary hearing only if a defendant makes a substantial
showing that (1) the affidavit contains statements that are deliberately false or were made
in reckless disregard of the truth, and (2) the affidavit‟s remaining contents, after the false
statements are excised, are insufficient to support a finding of probable cause. Innocent
or negligent misrepresentations will not support a motion to traverse. [Citations.] A
defendant who challenges a search warrant based on omissions in the affidavit bears the
burden of showing an intentional or reckless omission of material information that, when
added to the affidavit, renders it insufficient to support a finding of probable cause.
[Citations.] In either setting, the defendant must make his showing by a preponderance

                                              10
of the evidence, and the affidavit is presumed valid.” (People v. Scott (2011) 52 Cal.4th
452, 484, italics omitted.)
       If the defendant makes the requisite showing, “and if, when material that is the
subject of the alleged falsity or reckless disregard is set to one side, there remains
sufficient content in the warrant affidavit to support a finding of probable cause, no
hearing is required. On the other hand, if the remaining content is insufficient, the
defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.”
(Franks, supra, 438 U.S. at pp. 171-172, fn. omitted.) In short, a defendant is entitled to
an evidentiary hearing only if he “makes a substantial showing that (1) the affidavit
contains statements that are deliberately false or were made in reckless disregard of the
truth, and (2) the affidavit‟s remaining contents, after the false statements are excised, are
insufficient to support a finding of probable cause.” (People v. Panah (2005) 35 Cal.4th
395, 456.) Those contents support probable cause if they give the magistrate a substantial
basis for concluding a fair probability existed that a search would uncover wrongdoing.
(People v. Kraft (2000) 23 Cal.4th 978, 1040.)
       The trial court‟s finding that Mason failed to make the showing required by
Franks, and its denial of a hearing, are subject to de novo review. (People v. Box (1993)
14 Cal.App.4th 177, 183.)
       Four Entries to Rio Linda
       Mason claims he made a substantial showing the affidavit‟s four statements that
Mason and Cathey were seen entering Rio Linda without knocking were false. He relies
in part on investigator Brown‟s declaration that “the only vantage point that allows vision
to the front door of the residence is by standing directly in front of the door,” and that the
door is 3.5 to 4.5 feet from the front wall.4 Mason also relies on his own declaration that



4      Investigator Lori Brown‟s declaration stated in relevant part:
       “I have observed by walking around [Rio Linda] that the only vantage point that

                                              11
neither he, nor Cathey, nor other residents of the complex ever saw an officer standing at
a location that afforded a sufficient view of the front door. In addition, Mason relies on
Detective Roman Murrietta‟s handwritten surveillance note indicating defendant and
Cathey returned to the “yellow duplex behind 3625 Rio Linda Blvd -- both to entry
way.”5
         Mason‟s evidence suggested that Rio Linda‟s front door was not visible from a
location where officers could conduct surveillance while remaining undetected by the
targets of the investigation. However, Mason‟s evidence did not reveal whether persons
standing outside the door, knocking and awaiting admission, would similarly be out of
view and earshot of adequately-concealed officers.
         Specifically, Brown‟s declaration that the door was 3.5 to 4.5 feet from the
building‟s front wall in some unstated direction raised only a speculative possibility that
the building would conceal, not just the door itself, but also any persons who remained
outside the door until it was opened for them. Nor did Brown‟s declaration suggest
anyone could depart from the area just outside the front door on an alternate route,
without entering the door or the officers‟ field of vision.
         Thus, if officers observed defendants approach the door and promptly disappear
from view without making what appeared to be knocking motions and without appearing



allows vision to the front door of the residence is by standing directly in front of the door.
        “The walkway from the front wall of the building at [Rio Linda] to the door is
[3.5] feet. There is a pillar on either side of the door that adds at least 1 foot to the
distance.
        “The distance from the front door of 3623 Rio Linda Blvd., which is directly
across from [the Rio Linda residence] is 42.9 feet.
        “The width of the driveway is 16 feet.
        “The length of the driveway is [86.5] feet.”
5      Mason also relies on Detective Oliver‟s handwritten note that Cathey and Mason
“entered the home.” This court is unable to make out all of the words in Detective
Oliver‟s notes and thus cannot determine that Mason‟s interpretation is correct.

                                              12
to linger outside the door, and if the officers heard no sounds associated with knocking on
a door, the officers could fairly infer that they had observed defendants in the process of
entering without knocking or waiting to be let in. Mason has not shown the challenged
statements were deliberately false or made in reckless disregard of the truth. (People v.
Scott, supra, 52 Cal.4th at p. 484.)6
       As ably and succinctly observed by Judge Bakarich after hearing and denying
Mason‟s Franks motion, and echoed by Judge Davidian prior to trial, even if the four
unassisted entries to Rio Linda are excluded, the affidavit gave the magistrate a
substantial basis for concluding a fair probability existed that a search of Rio Linda
would uncover evidence of wrongdoing. (People v. Kraft, supra, 23 Cal.4th at p. 1040.)
The affidavit contained abundant evidence that defendants were conducting drug sales
from Delta and the Escalade. Defendants were observed taking the Escalade from Delta
to Rio Linda. The same day, Mason drove the Escalade from Rio Linda, engaged in two
apparent narcotics transactions, and returned to Rio Linda. The Escalade was parked at
Rio Linda when surveillance resumed the next morning. A few weeks later, officers
observed Cathey drive the Escalade from Rio Linda to Delta, leave Delta and engage in
an apparent narcotics transaction, and return to Rio Linda. Two weeks after that, officers
again saw Mason at Rio Linda. Thereafter, officers conducted a controlled buy from
Mason at Delta. This evidence, plus the fact the Rio Linda SMUD account was in the
name of a person with the same surname as Mason, raised a fair probability defendants



6      Mason‟s reliance on Detective Murrietta‟s surveillance notes is misplaced. Facts
omitted from the notes could have been supplied to Detective Oliver during a
postsurveillance conversation between Detective Oliver and the officers who had
observed the first three entries (Detective Oliver observed the fourth entry). Because
Mason bore the burden to show Detective Oliver‟s statements were deliberately false or
made in reckless disregard of the truth, it was up to him to negate the possibility
Detective Oliver had discussed the first three entries to Rio Linda with the officer or
officers who had made the observations. This Mason has not done.

                                             13
were using Rio Linda, as well as Delta, for their narcotics operation and evidence of that
activity would be found at Rio Linda. Mason‟s argument that defendants‟ narcotics
activity at Delta cannot be considered when evaluating probable cause for Rio Linda is
illogical and has no merit.
       Mason disagrees, claiming the foregoing information “is suspect” in light of the
claimed “ „lying or reckless inaccuracy‟ ” we have already discussed. (People v. Kurland
(1980) 28 Cal.3d 376, 386.) Having found no evidence of lying or reckless inaccuracy,
we reject Mason‟s contention.
       In any event, the affidavit did not show -- and Mason does not contend -- that
there was any evidence, other than the entries without knocking or waiting to be
admitted, that Mason personally had any reasonable expectation of privacy at Rio Linda,
“ „ “either by reference to concepts of real or personal property law or understandings
that are recognized and permitted by society.” ‟ ” (People v. Ayala (2000) 23 Cal.4th
225, 255, quoting Minnesota v. Carter (1998) 525 U.S. 83, 88 [142 L.Ed.2d 373, 379].)
The mere facts he shared a surname with the SMUD subscriber and with some juveniles
found during the search are manifestly insufficient for that purpose. Had Mason
succeeded in challenging the disputed passages, he perversely would have negated his
reasonable expectation of privacy and thus defeated his Fourth Amendment claim as it
relates to Rio Linda.
       Surveillance of CRI at Delta
       Mason claims he made a substantial showing the affidavit (1) deliberately or
recklessly included the false statement that the CRI had been kept under “constant
surveillance,” and (2) intentionally or recklessly failed to state that no surveillance team
member visually observed the CRI entering or exiting from Delta. Mason claims the
statements the CRI “was kept under constant surveillance,” and the CRI “ „approached‟ ”
and later “ „left‟ ” Delta, falsely suggested the CRI was seen “entering and exiting the



                                             14
house,” even though one officer lost sight of the CRI and the other officer saw the CRI
walk only “ „to‟ ” the door. We are not convinced.
       The affidavit described the officers‟ observations of the CRI at Delta as follows:
“[Detective] Nasca met with CRI. CRI and CRI‟s vehicle, were searched by a member of
law enforcement for any contraband or money. None was found. CRI was furnished
with pre-recorded official funds with which to purchase drugs/narcotics. From this point
on, the CRI was kept under constant surveillance by Nasca or other officers. The CRI
was then followed to the area of [Delta]. The CRI was kept under surveillance from the
time that the informant left the presence of Nasca and other officers till such time as CRI
approached [Delta]. A short time later, CRI left [Delta] and was followed out of the area
to a predetermined meeting location by Officers. At this point in time, CRI handed
Nasca the suspected cocaine base. . . . CRI told Nasca that CRI had used the pre-
recorded official funds to purchase an amount of cocaine from [Mason] while inside
[Delta].” (Italics added.)
       The affidavit‟s statement that, “[f]rom this point on, the CRI was kept under
constant surveillance” precisely identifies the surveillance‟s beginning (i.e., “this point”)
but is, at best, vague as to its end (i.e., “on”). (Italics added.) However, this vagueness is
cured, and the end point is precisely identified, in the ensuing statement that “[t]he CRI
was kept under surveillance from the time that the informant left the presence of Nasca
and other officers till such time as CRI approached [Delta].” (Italics added.) No
reasonable magistrate would read “[f]rom this point on” in isolation from “till such time
as CRI approached [Delta],” and thus conclude the surveillance continued “on,” even
after the CRI approached Delta, until he crossed its threshold. Thus, contrary to Mason‟s
argument, the affidavit‟s failure to reiterate the officers did not see the CRI cross the
threshold of Delta was not a material omission.
       In any event, a magistrate who was told more explicitly that the CRI had been seen
approaching Delta and then leaving Delta, but had not been seen crossing Delta‟s

                                              15
threshold, could do no more than speculate that, contrary to the CRI‟s statement to
Detective Nasca, the CRI had obtained the cocaine from a supplier other than Mason at a
location other than Delta.
       As Mason concedes, investigator Brown determined that, while the front door of
Delta generally was free of “vision obstructions,” there was “a large oak tree directly in
front of the front door making vision of the front door somewhat blocked standing
directly in front of the door.” Thus, the tree -- the sole obstruction -- did not give the CRI
sufficient cover to arrange and consummate a drug purchase elsewhere in the
neighborhood. At most, the tree would have allowed the CRI to make the purchase from
someone other than Mason who serendipitously was lurking behind the tree. The utter
absurdity of this scenario makes plain why the omission was not material to the
determination of probable cause to search. Mason‟s Franks motion was properly denied
by Judge Bakarich and echoed by Judge Davidian.
                                              II
       Cathey contends her trial counsel rendered ineffective assistance when, without
explanation, he withdrew his previous joinder in Mason‟s Franks motion. We disagree.
       “[A] conviction will not be reversed based on a claim of ineffective assistance of
counsel unless the defendant establishes both of the following: (1) that counsel‟s
representation fell below an objective standard of reasonableness; and (2) that there is a
reasonable probability that, but for counsel‟s unprofessional errors, a determination more
favorable to defendant would have resulted. [Citations.] If the defendant makes an
insufficient showing on either one of these components, the ineffective assistance claim
fails. Moreover, „ “a court need not determine whether counsel‟s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” [Citation.]‟ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1126, quoting People v. Cox (1991) 53 Cal.3d 618, 656, original italics.)



                                             16
       In this case, the issue of prejudice is dispositive. In part I, ante, we determined
that the trial court‟s denial of Mason‟s Franks motion was not error. Cathey could not
possibly have suffered prejudice from her trial counsel‟s refusal to join in the meritless
motion.
                                       DISPOSITION
       The judgment is affirmed.



                                                    NICHOLSON          , J.



We concur:



      BLEASE          , Acting P. J.



      BUTZ           , J.




                                             17
