California Cases September 15, 2023: People v. Aguilar

Case Description

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NOT TO BE PUBLISHED

(Monterey County Super. Ct. No. 21CR009994)

BAMATTRE-MANOUKIAN, ACTING P.J.

Defendant Isaac Aguilar appeals from a probation order entered after he pleaded no contest to manufacturing concentrated cannabis (Health &Saf. Code, § 11379.6, subd. (a)), possessing metal knuckles (Pen. Code § 21810), and failing to obtain a required number or mark for a manufactured or assembled firearm (Pen. Code § 29180, subd. (g)). On appeal, defendant contends that the trial court erred in denying his motion to quash the search warrant and suppress evidence found at his residence, and that the trial court abused its discretion in imposing a probation condition requiring defendant to abstain from alcohol. For the reasons set forth below, we affirm the order denying the motion to quash, as well as the imposition of the no-alcohol probation condition.

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I. Factual and Procedural Background

On November 29, 2021, Greenfield Police Department Sergeant Justin Mattke sought a warrant to search defendant's person, residence, and vehicle based on DNA results linking defendant to a 2010 homicide. Mattke requested to search for indicia of identity and ownership, firearms, electronic devices, and gang indicia.

In his affidavit supporting the warrant, Mattke stated that on January 14, 2010, Greenfield police responded to the report of a shooting. The victim, Angel Gutierrez, had been shot by a small caliber shotgun, and he died from his injuries. A dispatcher advised the officers that a Hispanic male juvenile in his late teens wearing a black sweatshirt had been seen running from the area while in possession of a handgun. Shortly thereafter, the same Hispanic juvenile was seen entering a vehicle wearing only a white T-shirt.

While processing the crime scene, an officer found a black hooded sweatshirt against a chain link fence approximately one block from where the suspect in the black sweatshirt had been seen running. On March 23, 2010, the Greenfield Police Department submitted the black sweatshirt to the state crime lab for analysis. The cuffs of the sweatshirt tested positive for gunshot residue, and a DNA mixture consistent with at least two contributors was detected for the cuff, hood, and pocket of the sweatshirt.

This profile was entered into the DNA databank, and on July 6, 2016, the California Department of Justice notified the Greenfield Police Department of a DNA candidate match providing an investigative lead for defendant. The Department of Justice requested that the Greenfield Police Department obtain a new DNA sample from defendant for comparison and analysis. On September 8, 2021, Mattke obtained a warrant for Aguilar's DNA, and on the following day, he collected a DNA sample from defendant. On October 27, 2021, following analysis of defendant's DNA sample, the Department of Justice reported that there was "strong evidence" that defendant was the source of the DNA obtained from the sweatshirt.

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In the affidavit, Mattke stated that he was Greenfield Police Department's gang officer and a court-qualified gang expert. He also stated that he had developed expertise through his work as to "how gang members obtain their weapons, plan their assaults, and carry away, secrete and or dispose of their weapons."

Mattke stated in the affidavit that defendant was a documented Tiny Locos (TLS) Greenfield Norteno gang member, and that he had reached this conclusion based on personal contacts with defendant, as well as from contacts defendant had with other members of the Greenfield Police Department. Mattke summarized three Greenfield Police Reports that documented defendant's gang affiliation.

First, on February 12, 2010, about a month after the murder, police made contact with defendant drinking alcohol with two documented TLS gang members. Defendant was cited and released to his parents for possession of alcohol by a minor. On August 3, 2014, defendant was at a house party with multiple TLS gang members. At this party, a person was stabbed and killed. Defendant was interviewed at the scene. Finally, on May 21, 2016, police stopped a vehicle driven by defendant, with another known TLS gang member in the passenger seat. After searching the vehicle, officers found a loaded handgun. Defendant was later convicted of possession of a loaded firearm and gang enhancements based on this incident.

Mattke described the city of Greenfield as a "Norteno gang stronghold." He stated that the primary criminal activity of the TLS Norteno gang is "street terrorism," in the form of violent crime, including homicide. He stated that through his training and experience, he learned that it was common for gang members to preserve weapons for use in furthering the activities of the gang, and that it was likely that gang members would retain the guns for use in future crimes. Mattke stated that it is common for gangs to keep weapons at the residence of a gang member "who is not on probation or parole and is not suspected of a crime," and that when another gang member needs a gun to commit a crime, he would go to the holder of the gun to obtain it.

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Mattke sought permission to search for firearms, gun parts, ammunition, gun cleaning kits, holsters, and other items tending to show dominion and control over guns. He stated that whether or not the target firearm was recovered, the items sought would tend to show that firearms had once been located in a place to which defendant had access. He also requested permission to seize evidence of gang membership, in the form of drawings, photographs, audio and video recordings, and miscellaneous writings. Mattke opined that this would assist the police in identifying additional suspects and provide evidence to corroborate information from witnesses. He also stated that this type of evidence is not normally disposed of after a crime. Finally, Mattke sought permission to seize electronic devices belonging to defendant. Mattke stated that he knew "everyone currently to own a cellular telephone of some sort." He stated that evidence of the crime or communications between accomplices related to the crime would likely be on the electronic devices, and he noted that any seized devices would be searched only upon issue of warrant issued pursuant to the Electronic Communications Privacy Act.

A magistrate judge issued the warrant on November 29, 2021.

On December 1, 2021, police officers searched defendant's home, and seized materials associated with manufacturing concentrated cannabis, gang indicia, metal knuckles, gun parts, and two firearms, one of which did not contain a serial number. Defendant was not present for the search but was arrested for the murder of Angel Gutierrez after a traffic stop later that morning. Police officers confiscated three cell phones from his person.

The District Attorney filed a criminal complaint, later deemed an information, against defendant on December 3, 2021, charging him with manufacturing concentrated cannabis (Health &Saf. Code, § 11379.6, subd. (a); count 1), possessing metal knuckles

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(Pen. Code § 21810; count 2), and failing to obtain a required number or mark for a manufactured or assembled firearm (Pen. Code § 29180, subd. (g); count 3).

On March 9, 2022, defendant filed a motion to suppress evidence under section 1538.5, seeking to quash the search warrant executed at his home on December 1, 2021, and to suppress the evidence seized during this search. Following a hearing on March 25, 2022, the trial court denied defendant's motion, determining that the information in the search warrant affidavit was sufficient on its face to establish probable cause. In particular, with regard to defendant's argument that the information did not support present probable cause, the court stated that it found the analysis of People v. Lazarus applicable, such that the lapse in time here did not render the warrant stale because the items sought were not ones that the defendant was likely to dispose of. The court pointed to Mattke's statement in the affidavit that it was common for gang members to preserve weapons for future use. The court also found that there was probable cause to obtain the electronic devices because they can "contain communications, especially in this day and age, that are very old."

Defendant entered a no contest plea, without a plea agreement, to all three charges in the information on April 20, 2022. On May 18, 2022, the court suspended imposition of sentence, and placed defendant on formal probation for two years. Defendant objected at sentencing to the proposed probation condition that he abstain from all alcohol consumption. The court overruled the objection and imposed the no-alcohol probation condition.

Defendant filed a timely notice of appeal on May 23, 2022.

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II. Discussion

A. Motion to Quash

Defendant contends that the trial court erred in denying the motion to quash because the search warrant affidavit lacked a sufficient nexus between the gang indicia and cell phones sought and the offense under investigation, and because the affidavit failed to establish present probable cause to search for firearms or gang indicia. The Attorney General counters that the affidavit established the required nexus between the items sought and the 2010 homicide, and that the information supporting probable cause was not stale. We will affirm the denial of the motion to quash even assuming the warrant was not supported by probable cause, because we determine that the good faith exception to the exclusionary rule applies here.

The Fourth Amendment to the United States Constitution states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U.S. Const., 4th Amend.; see also Cal. Const., art. I, § 13; § 1525.) A defendant may move to suppress evidence obtained as the result of a search warrant on the basis that there was not probable cause to issue the warrant. (§ 1538.5, subd. (a)(1)(B)(iii).)

"The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is 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 ( Kraft ).) The task of the magistrate is to make a "practical, commonsense decision" as to whether, under all of the circumstances set forth in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." ( Illinois v. Gates (1983) 462 U.S. 213, 238.)

"The magistrate's determination of probable cause is entitled to deferential review." ( Kraft , supra , 23 Cal.4th at p. 1041.) Issuance of the warrant should be overturned" 'only if the affidavit fails as a matter of law to set forth sufficient competent

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evidence'" supporting the finding of probable cause. ( People v. Westerfield (2019) 6 Cal.5th 632, 659.)

1. Nexus Between Gang Indicia and the 2010 Homicide

Defendant first argues that there was an insufficient nexus connecting the items sought in the warrant to the 2010 homicide that was the subject of the investigation.

"[A]n application for a search warrant concerning [a suspect's] property or possessions must demonstrate cause to believe that 'evidence is likely to be found at the place to be searched.'" ( United States v. Griffith (D.C. Cir. 2017) 867 F.3d 1265, 1271 ( Griffith ), quoting Groh v. Ramirez (2004) 540 U.S. 551, 568.) "Moreover, '[t]here must, of course, be a nexus . . . between the item to be seized and criminal behavior.'" ( Griffith , supra , at p. 1271, quoting Warden, Md. Penitentiary v. Hayden (1967) 387 U.S. 294, 307.)

Defendant argues that there was no nexus between the 2010 shooting of Angel Gutierrez and the search for gang indicia. The Attorney General contends that the affidavit demonstrated a sufficient nexus to search for gang indicia because substantial evidence suggested that the motive for the murder was gang-related and because defendant matched the physical description of the shooter.

However, there are no details in the affidavit that describe the killing as being gang-related: it states only that the police responded to the shooting of a male victim who was found on his hands and knees, bleeding from his nose. As to the suspect, the affidavit describes him as a "Hispanic male juvenile, late teens, wearing a black hooded sweatshirt and blue jeans," who was later observed entering the rear passenger of a vehicle "wearing only a white T-shirt." This account lacks adequate distinguishing or specific detail to constitute a description that "matches" defendant. Moreover, while we agree that substantial evidence supplied in the affidavit supports the conclusion that defendant was a member of the TLS gang, we do not agree that because he was a gang member, the homicide was therefore gang-related. We thus determine that the affidavit

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did not establish a sufficient nexus to search for gang indicia on the basis that the homicide was a gang-related crime.

Defendant additionally argues that there was no nexus between the homicide under investigation and the request to search his cell phones and electronic devices because there was no case-specific information in the affidavit explaining why defendant's electronic devices would contain evidence of the 2010 shooting. The Attorney General responds that because there was a fair probability that the shooting was gang-related, this justified a search of the electronic devices for gang indicia and for evidence of the motive for the murder that could reasonably be stored on electronic devices. We conclude that, as was the case for the gang indicia, the request to search defendant's electronic devices for gang indicia and evidence of motive was premised on the unsupported conclusion that the crime was gang-related. We agree with defendant that the court's analysis focused on whether data from 11 years past could be transferred to electronic devices currently possessed by Aguilar without reaching the question of whether the affidavit provided case-specific facts to explain why the devices would contain evidence of the 2010 shooting.

2. Staleness - Gun and Gun-Related Gang Indicia

Defendant next contends that the search warrant affidavit lacked present probable cause that firearms and gang indicia would be found in defendant's home.

We note that defendant has not made an insufficient nexus argument with respect to the gun. In addition, defendant appears to concede that there was probable cause to believe the person wearing the black sweatshirt was likely the shooter. Because defendant is linked to the killing by way of his DNA on the sweatshirt, which also contained gunshot residue, the gang indicia could be relevant not for the purpose of establishing a gang-related motive for the murder but rather to establish a basis for defendant's conduct as it relates to keeping a firearm. Because defendant was a TLS member, the evidence in the affidavit as to how gang members handle firearms supports

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the conclusion that there was probable cause to believe that defendant would likely follow certain protocols with respect to retaining control of a gun, whether or not the killing itself was gang-related. We will therefore address the staleness argument with respect to the gun and gun-related gang indicia.

"No bright-line rule defines the point at which information is considered stale." ( People v. Carrington (2009) 47 Cal.4th 145, 163.) "Courts have upheld warrants despite delays between evidence of criminal activity and the issuance of a warrant, when there is reason to believe that criminal activity is ongoing or that evidence of criminality remains on the premises." ( Id . at p. 64.) "Substantial delays do not render warrants stale where the defendant is not likely to dispose of the items police seek to seize." ( People v. Stipo (2011) 195 Cal.App.4th 664, 672.)

As to the firearms, defendant argues that the affidavit lacked present probable cause to support the conclusion that the gun used in the 2010 homicide would be found at defendant's residence. In particular, defendant points to what he says is contradictory information in the affidavit because one paragraph states that "it is common for gang members to preserve weapons" and that they retain them for use in future crimes, yet the paragraph that follows states that guns are seen as property of the gang and are moved around among the various gang members' residences.

"Courts have recognized that firearms are likely to be retained by a suspect long after the crime is committed." ( Lazarus , supra , 238 Cal.App.4th at p. 765.) In Lazarus , the court found that it was likely that the defendant, whom investigators determined had harbored a romantic obsession with the victim at the time of his killing 23 years earlier, was likely to keep the gun used in the crime at her home, along with other items documenting her relationship with the victim. ( Id . at pp. 751, 765.) The court in Lazarus on that basis determined that probable cause supported the issuance of the warrant despite the time that had elapsed. ( Id . at p. 766.)

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Here, the trial court ruled that the analysis of Lazarus applied, despite the difference in facts, noting that warrants are not stale based on delay when the defendant is unlikely to dispose of the items sought. The trial court also acknowledged defendant's argument that the affidavit contained contradictory statements regarding where gang members stored their guns, but said that the statement in the second paragraph about gang members sometimes storing the guns in the house of a different member "does not erase" the statements from Mattke in the previous paragraph that it was common for gang members to preserve weapons and retain the weapons to protect themselves.

We agree with the trial court that while the homicide occurred 11 years before the search warrant was signed, information contained in the 2021 affidavit was not stale with respect to the request to search for firearms, given the showing by the gang expert in his affidavit that defendant would likely have retained the gun at his home. Defendant additionally argues that the request to seek the firearm was stale because he was made aware of his status as a suspect when the police obtained a DNA reference sample three months before the warrant was issued. But there is nothing in the record to indicate that defendant received information from law enforcement describing the crime for which the DNA had been sought. In any event, even if the DNA collection in 2021 possibly presented defendant with a new reason to dispose of the firearm, that does not alter our conclusion that, based on the substantial evidence set forth in the affidavit, probable cause supported the request to search for the firearm on his property.

Defendant additionally argues the affidavit failed to establish present probable cause that evidence of defendant's gang affiliation would be found in the places to be searched. We disagree, because the affidavit documented instances from 2010, 2014, and 2016 where police made contact with defendant while he was associating with TLS gang members after the 2010 killing. Also, Mattke stated in his affidavit that gang indicia was not the type of evidence that offenders would typically dispose of after committing a crime.

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We therefore conclude that the affidavit did not fail to provide present probable cause to search for firearms or gun-related gang indicia.

3. The Good Faith Exception to the Exclusionary Rule

Even if we were to assume that the evidence in the affidavit was insufficient to support probable cause, we conclude that the good faith exception to the exclusionary rule, as set out in United States v. Leon (1984) 468 U.S. 897 ( Leon ), applies here.

"In Leon , the high court held 'the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.'" ( People v. Camarella (1991) 54 Cal.3d 592, 596 ( Camarella ), quoting Leon , supra , 468 U.S. at p. 900.) Under this standard, exclusion of evidence is required only when "a well-trained officer should reasonably have known that the affidavit failed to establish probable cause (and hence that the officer should not have sought a warrant)." ( Camarella , supra , at p. 596.)

In this case, we do not believe that a well-trained officer should reasonably have known that the affidavit failed to establish probable cause. The suspect was seen wearing a black sweatshirt at or near the time of the shooting and then he was seen wearing a white T-shirt when he entered the vehicle. This confirms that the shooter discarded the black sweatshirt before he fled. The black sweatshirt was found in the area and direction in which the shooter fled, and the recovered sweatshirt contained both gunshot residue and defendant's DNA. These facts that link the defendant to the sweatshirt and the sweatshirt to the killing are evident from the affidavit before reaching the more general identifying characteristics of the shooter, who was described as a male Hispanic in his late teens. Based on the totality of information presented in the affidavit, we conclude that it was not" 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" ( Leon , supra , 468 U.S. at p. 923.)

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Accordingly, we will affirm the trial court's order denying the motion to quash because the good faith exception to the exclusionary rule applies here.

B. Probation Condition Prohibiting Alcohol 1. Additional Facts

Prior to sentencing, the probation department prepared a report recommending that the court suspend imposition of sentence and place defendant on formal probation. The report also recommended that the court impose numerous conditions, including that defendant totally abstain from the use of alcohol during the period of supervision. The report listed defendant's adult criminal history, which included two convictions for driving under the influence (DUI) (Veh. Code § 23152, subds. (a) &(b)). Defendant was convicted of one of the DUIs in 2012, and the other DUI conviction was from 2015. A risk assessment conducted by the probation officer listed defendant's substance abuse risk as "MEDIUM." Defendant reported to the probation officer that he drank one beer every other weekday and "slightly more" on the weekend, and defendant denied having a drug or alcohol problem.

At sentencing, defendant objected to the imposition of the no-alcohol condition, on the basis that his offense of conviction had nothing to do with alcohol. The court overruled the objection, stating that given the nature of the current offense, and defendant's prior DUIs, there was a sufficient basis to impose the no-alcohol condition to prevent further criminal activity.

2. Analysis

On appeal, defendant argues that the trial court erred in imposing the no-alcohol condition of probation because it was not reasonably related to future criminality.

The Court of Appeal reviews conditions of probation for abuse of discretion. ( People v. Moran (2016) 1 Cal.5th 398, 403 ( Moran ).) "[A] reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all

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the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." ( Ibid .)

"A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.'" ( People v. Lent (1975) 15 Cal.3d 481, 486 ( Lent ), quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Both parties here agree that the probation condition at issue here involves only the third Lent factor. Under the third prong, a condition is valid if it is "reasonably related to preventing future criminality." ( People v. Olguin (2008) 45 Cal.4th 375, 380.) Conditions of probation aimed at reforming and rehabilitating the probationer need not be tied strictly to the offender's crime so long as they are "reasonably directed at curbing his future criminality." ( Moran , supra , 1 Cal.5th at p. 404.)

The imposition of the no-alcohol condition here was reasonably directed at curbing defendant's future criminality. As the court emphasized, defendant was convicted of two DUIs within the 10-year period preceding the imposition of probation in this case. At his presentencing interview, defendant admitted to drinking alcohol several times a week, and the probation officer assessed his substance abuse risk as "MEDIUM." Moreover, defendant was found in possession of materials to operate a butane oil concentrated cannabis manufacturing facility in his home, along with two guns and other weapons and ammunition. Operating such a facility in the house where he lived with his children, girlfriend, and grandmother is an activity that put his family and neighbors at risk. (See People v. Bergen (2008) 166 Cal.App.4th 161, 172-173.) A prohibition on drinking alcohol, where defendant admitted to regular consumption of alcohol and had a history of DUI convictions, is reasonably related to curbing defendant's risky behavior. (See People v. Lindsay (1992) 10 Cal.App.4th 1642, 1645 [a person's exercise of judgment may be impaired by the consumption of alcohol].)

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We therefore reject defendant's contention that the trial court abused its discretion when it imposed the probation condition requiring him to abstain from using alcohol.

III. Disposition

The March 25, 2022 order denying the motion to quash is affirmed, and the May 18, 2022 order imposing the no-alcohol condition of probation is affirmed.

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WE CONCUR: DANNER, J. WILSON, J.