People v. Davis CA6

Filed 10/31/13 P. v. Davis CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038263 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1109331)

v.

AARON JONATHAN DAVIS,

Defendant and Appellant.

Defendant Aaron Jonathan Davis was placed on probation, which was immediately terminated, after he pleaded no contest to possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)) and possession of ammunition by a felon (Pen. Code, former § 12316, subd. (b)(1)). He challenges the trial court’s denial of his suppression motion and claims that the trial court erred in refusing to hold an evidentiary hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks). We conclude that the trial court did not err in denying his motion without an evidentiary hearing.

I. Background On June 12, 2011, around noon, Tomas Azevedo Batista was at Augustine Park in Milpitas with his girlfriend Lissa Toews and their friend Matthew Salinas. Batista was intoxicated. He and Toews encountered a man with a blue nose pitbull, and there was an exchange of words between Batista and the man. The man walked away with his dog. A

little later, the man returned without his dog, and more words were exchanged. Other individuals may have been involved. A physical confrontation followed. During this confrontation, which may have been instigated by Batista, the man hit Batista in the head with a hammer several times. Batista suffered a head wound that bled and required him to be taken to a hospital and have stitches. Milpitas Police Officer Jared Hernandez prepared an affidavit seeking a search warrant for defendant’s home and person in connection with the assault on Batista. Hernandez declared in his affidavit that dispatch had received a call at 12:16 p.m. on June 12 reporting a fight in Augustine Park. The caller said that four people were assaulting one person. When police arrived, they found Batista with “obvious blunt force trauma” to his head and abrasions on his stomach. He was “bleeding and appeared to be ‘out of it.’ ” Hernandez stated that Batista “is currently receiving medical treatment and is on a breathing tube for life support.” Hernandez declared that Toews and Salinas had told the police that the “suspect” was “a white male adult, approximately 30 years old, over 200 lbs, with a light goatee and mustache, wearing a black baseball style hat and a white [T]-shirt.” The suspect “was seen prior to the assault walking a blue nose pitbull in the park.” After exchanging profanities with Batista, the suspect “walked away westbound on Coelho St toward the 200(b[lock]).” The suspect “returned within a few minutes” without the dog but with a hammer. The suspect challenged Batista to fight, and Batista approached him. The suspect then attacked Batista with the hammer, hitting him on the head and raking his abdomen with the claw of the hammer. The suspect then “fled westbound on Coelho St.” Hernandez stated that the police had also spoken to “an independent witness, Robert Jacobson,” who told them that he had seen the fight “and provided a similar suspect description.” In addition, the police talked to “an uninvolved citizen that lived in the area, but expressed a desire to remain anonymous.” The police described the suspect