People v. Mesa

• Decision Date: 29 May 1975
• Docket Number: Cr. 17748
• Citation: 121 Cal.Rptr. 473,14 Cal.3d 466,535 P.2d 337
• Court: California Supreme Court
• Parties: , 535 P.2d 337 The PEOPLE, Plaintiff and Respondent, v. Frank Steven MESA, Defendant and Appellant.

Page 473

121 Cal.Rptr. 473

14 Cal.3d 466, 535 P.2d 337

The PEOPLE, Plaintiff and Respondent, v. Frank Steven MESA, Defendant and Appellant.

Cr. 17748.

Supreme Court of California In Bank.

May 29, 1975.

As Modified June 26, 1975.

Richard E. Savitz, San Diego, under appointment by the Supreme Court, and Harold F. Tyvoll, San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

David D. Minier, Dist. Atty., Santa Barbara, and Patrick J. McKinley, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

CLARK, Justice.

Defendant appeals from judgment entered on jury verdicts convicting him of possession of narcotics for sale (Health & Saf.Code, § 11351) and possession of narcotics paraphernalia (Health & Saf.Code, § 11364). The judgment is affirmed, but modified.

The contraband was discovered in defendant's residence during a search conducted pursuant to a warrant. The affidavit in support of the warrant stated that a confidential informant had told the affiant-officer he had seen a 'quantity of paper bindles' containing heroin at the residence 'on at least one occasion in the past six days.' Relying on Stoehr v. Superior Court (1973) 34 Cal.App.3d 197, 109 Cal.Rptr. 756, defendant contends the affidavit failed to provide probable cause to believe the heroin was still there.

The standards for reviewing search warrant affidavits stated in United States v. Ventresca (1965) 380 U.S. 102, 85 S.Ct 741, 13 L.Ed.2d 684 bear repetition here. 'If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. ( ) . . . (T)he courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' (Id. at pp. 108--109, 85 S.Ct. at p. 746; see People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183.)

Stoehr v. Superior Court, Supra, manifests the 'grudging or negative attitude by reviewing courts' condemned in Ventresca. The affidavit in Stoehr stated that a confidential informant told the affiant-officer he had seen heroin in a specified residence during the preceding week. The Court of Appeal held the affidavit defective on the following grounds: 'The informant's information does not give rise to a reasonable belief a search will uncover contraband now, i.e., on the date of the affidavit. ( ) The bare bones allegation the informant saw heroin in the house within the last seven days does not sufficiently connect the narcotic with the house or any occupant. For all the affidavit reveals, when the informer made his observation, he might have been alone in the house, and introduced the heroin into it unknown to any occupant. . . . ( ) It is sufficient to note here the affidavit's lack of detail forces a magistrate to engage in outright speculation before he can draw the inferences connecting the heroin with the house and that the heroin is still in the house and might be discovered by search. We are not told such circumstances as the quantity of heroin observed, how it was packaged, how many people were there, where it was located or whether it was involved in a transaction or use.' (34 Cal.App.3d at pp. 199--200, 109 Cal.Rptr. at p. 758.)

The reliability of the confidential informant in Stoehr, as here, was well established, as the Court of Appeal acknowledged in noting that the affidavit satisfied both 'prongs' of Aguilar v. Texas (1964) 378 U.S. 108, 114 84 S.Ct. 1509, 12 L.Ed.2d 723. ¹ (34 Cal.App.3d at p. 199, 109 Cal.Rptr. 756.) Therefore, the magistrate was entitled to dismiss the possibility that, 'when the informer made his observation, he might have been alone in the house, and introduced the heroin into it unknown to any occupant.' (34 Cal.App.3d at pp. 199--200, 109 Cal.Rptr. at p. 758.)

It is quite true that an affidavit in support of a search warrant must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought. (Sgro v. United States (1932) 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260; Alexander v. Superior Court (1973) 9 Cal.3d 387, 393, 107 Cal.Rptr. 483, 508 P.2d 1131; People v. Nadell (1972) 23 Cal.App.3d 746, 755, 100 Cal.Rptr. 444; People v. Sheridan (1969) 2 Cal.App.3d 483, 490, 82 Cal.Rptr. 695.) However, the information here was sufficiently timely to warrant such a belief; the reliable informant had personally observed the material to be seized on the premises to be searched within the previous six days. (See, e.g., People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 713, 100 Cal.Rptr. 319, 493 P.2d 1183; People v. Wilson (1968) 268 Cal.App.2d 581, 587--589, 74 Cal.Rptr. 131; People v. Scott (1968) 259 Cal.App.2d 268, 277--278, 66 Cal.Rptr. 257.) Whatever doubt remains in this case is resolved by the 'preference to be accorded to warrants.' (United States v. Ventresca, Supra, 380 U.S. at p. 109, 85 S.Ct. at p. 746.) Stoehr v. Superior Court is disapproved insofar as it conflicts with the principles expressed herein.

PRIOR CONVICTIONS

The information also alleged that defendant had been convicted twice for robbery in 1968. Defendant admitted the prior felony convictions, having initially denied them. Although both the minute order of judgment and the abstract of judgment refer to them, the trial judge failed to mention the priors in pronouncing judgment. Defendant contends the priors must therefore be stricken from the abstract of judgment.

In In re Candelario (1970) 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729, a defendant convicted of selling heroin admitted having received a prior felony conviction for possession of marijuana. However, the prior conviction was not mentioned in the oral pronouncement of judgment, the minute order of judgment, or the original abstract of judgment. Over a month later, the judge filed an amended abstract of judgment to which the prior conviction had been added.

Holding the attempted amendment invalid on the ground that failure to include the prior conviction in the judgment could not be presumed an inadvertent clerical error, this court stated: 'Admission of the prior offense . . . does not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. ( ) Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in...