People v. Caron

• Court: California Court of Appeals
• Writing for the Court: KLEIN
• Citation: People v. Caron, 171 Cal.Rptr. 203, 115 Cal.App.3d 236 (Cal. App. 1981)
• Decision Date: 26 January 1981
• Docket Number: Cr. 37177
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Anthony CARON, Defendant and Appellant.

Page 203

171 Cal.Rptr. 203

115 Cal.App.3d 236

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Anthony CARON, Defendant and Appellant.

Cr. 37177.

Court of Appeal, Second District, Division 3, California.

Jan. 26, 1981.

Hearing Denied March 25, 1981.

Burton Marks, Los Angeles, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Anthony D. Blankley, Deputy Attys. Gen., for plaintiff and respondent.

KLEIN, Presiding Justice.

Appellant Harvey Anthony Caron (Caron) appeals from his conviction of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) pursuant to a plea of guilty entered following the denial of his Penal Code section 1538.5 motion to suppress evidence.

PROCEDURAL BACKGROUND

Caron was charged with two counts of drug related offenses on March 24, 1976 after the execution of a search warrant at his residence. On April 23, 1976, he entered a plea of not guilty to these charges. Caron's motion to suppress the evidence seized during the search of his residence was denied following a hearing on July 16, 1976. Thereafter on July 19, 1976, he entered a plea of guilty to the above set forth counts and the matter was continued to August 16, 1976 for sentencing.

When Caron failed to appear on the August 16 sentencing date, a bench warrant was issued, the execution of which resulted in Caron's appearance in court more than three years later on December 19, 1979. Sentencing was then continued to January 2, 1980, at which time Caron moved to withdraw the guilty plea. Following a hearing on January 16, 1980, the motion was denied and Caron was sentenced pursuant to the plea bargain to five years formal probation subject to his serving one year in county jail and abiding by certain other terms and conditions. When he then refused to accept any conditions of probation other than service of one year in county jail, Caron was sentenced to state prison for the term prescribed by law.

CONTENTIONS

Caron contends that the trial court erred (1) in finding that the search warrant was supported by a legally sufficient affidavit and (2) in denying his motion to withdraw his guilty plea.

DISPOSITION

While finding Caron's arguments to be unmeritorious, we remand the cause for resentencing in accordance with the views expressed herein and affirm the judgment in all other respects.

DISCUSSION

Caron's contention that the affidavit in support of the search warrant was insufficient to justify issuance of the warrant is unpersuasive.

"(I)t is well settled that ' "(t)he warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit...." ' (Italics in original. People v. Benjamin (1969) 71 Cal.2d 296, 302, 78 Cal.Rptr. 510, 455 P.2d 438, citing People v. Govea (1965) 235 Cal.App.2d 285, 297, 45 Cal.Rptr. 253.) In examining the affidavit for sufficiency of the facts therein to support the magistrate's finding of probable cause, it is axiomatic that the courts are to interpret the affidavit in a common sense, nontechnical manner. (United States v. Ventresca (1965) 380 U.S. 102, 108-109, 85 S.Ct. 741, 745-746, 13 L.Ed.2d 684, 688-689; People v. Mesa (1975) 14 Cal.3d 466, 469, 121 Cal.Rptr. 473, 535 P.2d 337.) The reviewing court will pay substantial deference to the magistrate's determination of probable cause (Aguilar v. Texas (1964) 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 726-727) and may sustain a search where one without a warrant would fail (United States v. Ventresca, supra, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689)."

(People v. Emanuel (1978) 87 Cal.App.3d 205, 212-213, 87 Cal.Rptr. 44; see People v. Cook (1978) 22 Cal.3d 67, 84, 148 Cal.Rptr. 605, 583 P.2d 130; People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 470, 154 Cal.Rptr. 157.)

"The guiding authority on the requirements of a search warrant's probable cause is found in Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 89 S.Ct. 584, 21 L.Ed.2d 637. The California's courts have stated the rule of those cases in this manner: '(1) the affidavit must allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable.' (Price v. Superior Court (1970) 1 Cal.3d 836, 840, 83 Cal.Rptr. 369, 463 P.2d 721; People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 454 P.2d 681.)"

(People v. Superior Court (Bingham), supra, 91 Cal.App.3d at p. 470, 154 Cal.Rptr. 157; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 450 P.2d 865.)

The affidavit in question herein contained accounts of numerous complaints of excessive foot and vehicular traffic at Caron's residence made to police by Caron's neighbors. License numbers were taken down by these citizens from vehicles found to be registered to known narcotics offenders. Additionally, one of Caron's neighbors had informed police on May 2, 1975 that Caron had invited him to enter into a joint venture in marijuana sales.

The affidavit further noted that on March 23, 1976, police received an anonymous tip that Caron and another individual suspected to have been involved in illegal drug activities had been involved in a previous marijuana sale and were going to be involved in a cocaine sale at Caron's residence that night. The affiant officer then proceeded to Caron's address, watched the house and, after observing considerable activity, saw a man who had entered the house 15 minutes earlier put an "unknown object" in his pocket as he was leaving. Thirty minutes later this same individual was arrested and found to be in possession of cocaine.

The affidavit then stated that the affiant was an experienced narcotics officer who, based upon his experience, believed illegal narcotics activity was taking place at Caron's residence.

The information comprising the affidavit was presented in a factual manner, for the most part establishing the personal knowledge of its sources. Although there are no facts in the officer's affidavit to indicate any of the informants had been utilized in the past and found to be reliable, "information obtained from an untested informant may be deemed sufficient if corroborated in essential aspects by other facts, sources or circumstances. (Citation.)" (Caligari v. Superior Court (1979) 98 Cal.App.3d 725, 732, 159 Cal.Rptr. 534; see People v. Emanuel, supra, 87 Cal.App.3d at p. 213, 87 Cal.Rptr. 44.) Moreover, "citizen-informants" are inherently more reliable than other informers. (People v. Ramey (1976) 16 Cal.3d 263, 268-269, 127 Cal.Rptr. 629, 545 P.2d 1343; People v. Superior Court (Bingham), supra, 91 Cal.App.3d at p. 471, 154 Cal.Rptr. 157.)

While the observations of Caron's neighbors and the affiant officer may not in themselves have been sufficient to establish probable cause, they were, when viewed as a whole, sufficient to corroborate the substantive information received by police as to Caron's attempt to involve his neighbor in marijuana sales and his involvement in a cocaine sale at his residence. ¹

Accordingly, the trial court did not abuse its discretion in finding the affidavit sufficient to support the issuance of the search warrant.

Caron's contention that the trial court erred in denying his motion to withdraw his guilty plea is also without merit.

A guilty plea accepted by the court is tantamount to a conviction. (People v. Stanworth (1974) 11 Cal.3d 588, 606, 114 Cal.Rptr. 250, 522 P.2d 1058; Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 154, 139 Cal.Rptr. 121.) Accordingly, it may not be withdrawn without adequate grounds. "The granting of (a motion to set aside a guilty plea) is within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated. (Citations.) Trial courts are expressly directed to give a liberal construction to the provisions of (Penal Code) section 1018 in the interest of promoting justice. ² ... (T)he test of abuse ... is whether after consideration of all relevant factors there was good cause shown for granting the motion and whether justice would be promoted thereby. (Citations.)" (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-798, 114 Cal.Rptr. 596, 523 P.2d 636; People v. Cartwright (1979) 98 Cal.App.3d 369, 386, 159 Cal.Rptr. 554.)

In the case at bar, when Caron entered his guilty plea on July 19, 1976, he was told that as a result of his guilty plea to possession of heroin he would not be sentenced to state prison and the second charge would be dropped. He was also informed of the possible consequences of his plea:

"You will be placed on felony probation. As a condition of felony probation, you could be sentenced up to one year in the county jail. There would also be certain other terms and conditions of probation. Should you violate any of those terms and conditions of probation and return to this Court and the Court finds that you did violate those terms and conditions, the Court could then sentence you to state prison. The penalty for this offense, if you are sentenced to state prison, provided for in the terms and conditions of your probation is for a minimum of two years to ten years."

Caron was then asked if he understood the consequences of entering such a plea and if he still desired to enter such a...