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Name: People v. Jones
Case #: C059440
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/03/2010
Subsequent History: Review granted 12/15/10: S187135

When there is reason to believe that criminal activity is ongoing or that evidence of criminality remains on the premises, what otherwise would be stale information presented in a search warrant, may provide probable cause for issuance of the warrant. The victim’s purse containing her identifying information was stolen in 2002. In 2004, she received correspondence from collection agencies indicating that her identification had been used to open accounts and there were overdue accounts with AT&T and Liberty Wireless. An overdue account with AT&T had appellant’s name and address. Also in 2004, the victim received a letter from Sprint advising her that her application had been denied. But she had not made such an application. In September 2004, the police sought and obtained a search warrant for appellant’s residence, listing this information. A search of the residence uncovered the cell phone associated with the AT&T account. Appellant pled no contest to several offenses and admitted a prior “strike,” and a prior prison term enhancement. The court struck the “strike” and prior prison term enhancement and sentenced appellant to three-years and eight months in prison, and declined to award day for day conduct credits pursuant to amended Penal Code section 4019. Appellant argued the search warrant was based on stale information. An affidavit in support of a search warrant must provide information indicating that that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Information that is remote in time may be deemed stale and insufficient to provide probable cause. Generally, information is stale if there is a delay of more than four weeks and longer delays are justified only where there is evidence of an activity continuing over a long period of time or the nature of the activity is such as to justify the inference that it will continue until the time of the search. Here, the court could reasonably infer that since appellant had the victim’s identity and illegally used it in November 2003 (the AT&T account), the later illegal uses for similar purposes (the Sprint account) were also connected to him. This inference supported the probable cause finding.
By agreeing to a maximum term in a plea bargain, a defendant who is sentenced to that term, or less, is barred from arguing on appeal that the sentence imposed violates Penal Code section 654, unless the claim is asserted when the agreement is recited on the record. Appellant claimed that the concurrent sentences imposed violated Penal Code section 654. Noting that the matter has not yet been definitively decided by the Supreme Court, the appellate court found that the language of California Rules of Court rule 4.412 (b) which says, “By agreeing to a specified term, . . . , a defendant who is sentenced to that term . . . abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment . . .,” does not mean a specific term, as argued by appellant. Specified and maximum term do not have mutually exclusive meanings and a term is “specified” in a plea agreement even when it is a maximum term because it is identified explicitly, or is specified. Accordingly, as here, when a maximum term is specified in a plea agreement, appellant is estopped from arguing on appeal that the sentence violates section 654.
Under amended Penal Code section 4019, a defendant is ineligible for day for day presentence conduct credits if it is pled and proven that he has a prior “strike” conviction, unless the strike was stricken for the purpose of applying section 4019. Because a prior serious felony conviction makes a defendant ineligible for additional presentence custody credits, its effect is increased punishment and, therefore, the “strike” must be pled and proven to deny defendant the benefits of amended section 4019. If the prior serious felony conviction is pled and proven but the court elects to strike it under Penal Code section 1385, whether defendant will receive the benefits of section 4019 will depend on the court’s purpose in striking the prior. If the purpose is for section 4019, as opposed to striking the prior to avoid the sentencing requirements of the Three Strikes Law, defendant is eligible for day-for-day presentence conduct credits. Here, because the amendment to section 4019 had not been enacted at the time of sentencing, the matter was remanded to give the trial court the opportunity to exercise its discretion and strike the prior for the purpose of applying section 4019.