People v. Zepeda

Opinion

PARAS, J.

This appeal follows the guilty plea of defendant Zepeda to burglary (Pen. Code, § 459), after the trial court denied his Penal Code section 1538.5 motion. Defendant sought to suppress evidence taken from his residence pursuant to a search warrant. He challenges the warrant on two grounds, insufficient indicia of reliability to permit reliance on an informant, and execution of the warrant after 10 p.m.

At 6:40 p.m. on October 31, 1978, Officer Arden obtained the warrant from Judge Kim of the San Joaquin County Municipal Court. It was indorsed for night service and specified the residences of Ronald Ted Fuentes (1533 Knickerbocker) and defendant (609 West Acacia) as the places to be searched. A search of both said persons was also authorized.

The warrant was obtained upon Officer Arden’s affidavit. The affidavit included a summary of three separate burglaries of Taco Bell

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restaurants on the nights of September 4, October 14, and October 26, 1978. The burglaries were similar in that in each a safe was stolen, which had been enclosed in a wood cabinet with concrete poured into it, and the cabinet was torn apart and the concrete broken in order to gain access. Further, a “vibram” type shoeprint was discovered at the last two Taco Bells.

The affidavit also contained a statement of Virginia Fuentes, wife of Ronald Ted Fuentes, who was defendant’s codefendant. On October 30, Mrs. Fuentes reported an alleged battery on her by Fuentes, and she also gave incriminating statements concerning burglaries committed by the two men. Her statement included a reference by Fuentes to a September 4 or 5 burglary involving $1,200 or $1,300, an assertion by Fuentes on October 26 that he and defendant just “done another job,” a boast by defendant about the Taco Bell burglary of September 4, the fact that Mrs. Fuentes had observed the two men cutting open a safe in her garage, and a description of that safe. Finally, the affidavit indicated that Arden had retrieved a part of the safe from Mrs. Fuentes, which he took to one of the Taco Bell establishments where it was identified by the manager.

Execution of the warrant began at the Fuentes’ house (1533 Knickerbocker) between 8:30 and 9 p.m. This search lasted 30 minutes, after which the officers took 5 minutes to drive to defendant’s and Fuentes’ place of employment. Three minutes elapsed before the two were located there, and the officers talked to them for five minutes. They all then drove to the police station (seven to ten minutes) where the boots of Fuentes and defendant were taken pursuant to the warrant. Twenty minutes later they all drove to defendant’s residence (seven to eight minutes) to execute the warrant there. Officer Arden was not sure whether it was before or after 10 p.m. when they arrived.