People v. Flores

• Citation: 180 Cal.Rptr. 368,128 Cal.App.3d 512
• Decision Date: 19 January 1982
• Docket Number: Cr. 11962
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Benjamin Gabino FLORES and Jacinto Dominguez, Defendants and Appellants.

Page 368

180 Cal.Rptr. 368

128 Cal.App.3d 512

The PEOPLE, Plaintiff and Respondent, v. Benjamin Gabino FLORES and Jacinto Dominguez, Defendants and Appellants.

Cr. 11962.

Court of Appeal, Fourth District, Division 1, California.

Jan. 19, 1982.

Lawson & Hartnell, Bryan C. Hartnell, Redlands, and Frank L. Croteau, Huntington Beach, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Rudolf Corona, Jr., Deputy Attys. Gen., for plaintiff and respondent.

COLOGNE, Associate Justice.

A jury found Benjamin Gabino Flores and Jacinto Dominguez guilty of selling heroin (Health & Saf.Code, § 11352), involving four counts in Flores' case and one count in Dominguez' case, and possessing heroin for sale (Health & Saf.Code, § 11351), involving one count in each case. On the heroin sale count (count IV) and the possession for sale count (count V) involving both Flores and Dominguez, the jury found true the allegation the substance was in an amount of one-half ounce or more within the meaning of Penal Code section 1203.07, subdivision (a)(2). The trial court sentenced Flores to prison for the upper term of five years on the sale count involving both Flores and Dominguez (count IV), to a consecutive one-year term on the possession for sale count also involving both individuals (count V), and to concurrent middle terms of four years each on the remaining three sales convictions. It sentenced Dominguez similarly on counts IV and V, though it used the middle term of four years on the sale count, and it added a one-year consecutive term for a prior felony conviction Dominguez admitted before trial.

In August 1979, Narcotics Task Force Deputy Sheriff Frank Peralta contacted Celeste Harrison, also known as Lelani Moore, at the Los Colinas county jail facility. Moore, a prostitute and addict, was awaiting trial of charges of prostitution and drug use. The deputy and she arranged for her to become a paid drug informant with the deputy promising to pay her $400 to $600, provide some of her housing, buy a ticket out of town for her, and tell the city attorney involved with charges pending against her about her cooperation and willingness to testify. Peralta and she discussed Flores whom Moore knew.

On September 6, 1979, after she was released from jail, Peralta arranged for Moore to be taken to Flores' San Diego residence where she carried out a "controlled" purchase of one balloon of heroin from Flores. The "control" involved search Moore's person, except body cavities, and her effects, as well as furnishing her with $100 in $20 bills with the serial numbers recorded before she made contact with Flores, then searching her after the purchase so as to determine she had none of the money and no more heroin on her person after the purchase. Officers kept her in sight during the whole transaction except the actual sale and purchase inside Flores' house.

Moore made a similar controlled purchase at Flores' place on each of the next two days, resulting in Flores selling her two balloons of heroin for $200 on September 7, and a plastic baggie of $450 worth of heroin on September 8.

In the afternoon following the September 7 sale, Peralta executed his affidavit for a search warrant which said he had received confidential information regarding Flores and his place within the past three days from a reliable informant. Among other things not here pertinent, the affidavit also stated:

"This Affiant, with in the last 3 days, had Agent DEBBIE MILLER search daid [sic] informent [sic] and determined that the informant was not in the possession of any contraband or money. That the confidential informant was then provided with $100.00 of grant funds and then driven to the area of 3711 Clavelita St., in the City of San Diego, County of San Diego, State of California by Police Officer M. L. Davis of San Diego Police Department Crime Suppression Unit. Agent Peralta and Officer E. Newberg of San Diego Police Department Crime Suppresion [sic] Unit observed the confidential informant walk to the 3711 Clavelita St. address and contact "S" BENJAMIN FLORES in the front yard of the resident after a short conversation both the confidential informant and "S" BENJAMIN FLORES were observed entering the above address. Agent Peralta and Officer Newberg observed "S" Benjamin Flores exit the residence and walk towards the front portion of the residence and returned back inside the residence. Shortly after that the confidential informant and "S" Benjamin Flores exited the residence. The confidential informant returned to San Diego Police Officer Davis and handed Officer Davis a YELLOW ROLLED BALLOON with herion [sic] that had been purchased in the residence of 3711 Clavelita St., San Diego, California from Benjamin Flores. Police Officer Davis and the confidential informant met with Agent Miller at which time Agent Miller searched the informant and found no money or contraband on the confidential informant. Said informant told this Affiant that while inside the premises the purchase was made from Benjamin Flores, and said informant in exchange for $100.00 of grant funds received a yellow rolled balloon of heroin, approximately 1 gram. The Affiant conducted a field presumptive test which proved positive for herion [sic].

"Said informant stated to this Affiant that said informant has seen substances recognized by the informant to be narcotics on numerous prior occassions [sic] when the informant has been in the residence at 3711 Clavelita St., San Diego, California. The informant has personally seen ounce quantities of substances known to her to be heroin and identified to the informant by Benjamin Flores to be heroin."

Armed with search and arrest warrants for both the Flores place and Flores, the officers and Moore returned there on September 11 for another controlled purchase. This time they gave Moore $4,000 in chemically dusted bills with recorded serial numbers for use in the purchase. Moore went into the house and bought over two ounces of heroin from Dominguez and Flores, both of whom handled the money as later determined from ultraviolet testing. While Moore was in the house, Dominguez left by a rear door, walked part way down a nearby hillside and put the money under a piece of cement. During this time, Dominguez twice went to a pile of lumber outside the house where two baggies of heroin were later found. Meanwhile, Flores escorted Moore to the police-manned taxicab she had arrived in and when he was told by the driver the police were there, Flores ran back toward the house. At the same time, task force officers converged on the scene. Officer Peralta saw Flores running back to the house, yelled at him to stop and placed him under arrest, handing his custody over to another officer. Peralta immediately went to the front door of Flores' house, saw the screen door was ajar and the front door open and yelled "Police officer with a search warrant. Demand an entry." Knowing of the heroin sales in the house, realizing someone else was inside and thinking any more heroin in there could be destroyed, Peralta entered one or two seconds later and saw Dominguez and a woman sitting on a couch in the living room. Dominguez was placed in custody and Flores was brought in and served with the warrant. The search which followed turned up two scales and various other items used in the heroin packaging process, a small caliber handgun and documents showing Flores resided there. Also seized were the heroin and money from their respective hiding places outside Flores' house.

Flores and Dominguez contend the search warrant was invalid because material facts were omitted. Omitted facts they argue should have been included tended to show Moore was not a reliable informant and was under pressure to please the police to receive rewards offered for her cooperation. These alleged facts included her being addicted to heroin with a heavy use, her worry about being committed to the California Rehabilitation Center in connection with the pending charges; police promises to aid her in resolving those charges, to pay her $600 and to furnish a ticket to leave the area; and payments police had made for a motel room and spending money for Moore.

A search warrant affidavit 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 (People v. Kurland, 28 Cal.3d 376, 384, 168 Cal.Rptr. 667, 618 P.2d 213). The affiant's duty of disclosure extends only to "material" adverse facts, and materiality is tested by determining whether the omission makes the affidavit substantially misleading, that is, whether because of the inherent probative force of the omitted facts there is a substantial possibility they would have altered a reasonable magistrate's probable cause determination (id., at pp. 384, 385, 168 Cal.Rptr. 667, 618 P.2d 213).

Granting for the moment the omissions were material to the issue of Moore's reliability, i.e., that she was credible or her information reliable (Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723], we must embark on the concluding steps of analysis set forth in Kurland as follows:

"If an omission is found material, the reviewing court must next determine, as in Theodor [v. People, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234] and Cook [22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130], whether it arose innocently or from culpable conduct. However, since not all intentional omissions of material facts are blameworthy, the reviewing court must apply a modified version of the Theodor-Cook formula for culpability. The necessary modification is plain. The trial court must decide whether the material omission was either (1) reasonable, (2) negligent, or (3) recklessly inaccurate or intentionally...