People v. Fleming CA1/3

Filed 1/23/14 P. v. Fleming CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A138213 v. BRIAN CHRISTOPHER FLEMING, (Humboldt County Super. Ct. Nos. CR1105355, Defendant and Appellant. CR1202460, CR1202705)

Defendant Brian Christopher Fleming pleaded guilty to the felony offenses of sale or transportation of a controlled substance (Health & Saf. § 11379, subd. (a)) (two counts), and possession of a controlled substance for sale (Health & Saf. § 11378) (one count). He also admitted he had previously served a prison term for a felony conviction (Pen. Code, § 667.5, subd. (b)), and was released on his own recognizance in two different cases when he was arrested for the current offenses (Pen. Code, § 12022.1). The court sentenced Fleming to an aggregate term of ten years and eight months: three years to be served in county jail followed by seven years and eight months of mandatory supervision by the probation department. (Pen. Code, § 1170, subd.(h)(5)(B).) On appeal, Fleming challenges the trial court’s denial of his motion to quash a May 22, 2012, search warrant and suppress the evidence seized under that warrant. We affirm the judgments.

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FACTUAL AND PROCEDURAL BACKGROUND Because the sole question before us is whether the trial court erred in denying Fleming’s motion to quash a May 22, 2012 search warrant and suppress evidence seized under that warrant, we set forth only those facts necessary to resolve this issue. A. Issuance and Execution of Search Warrant On May 22, 2012, a magistrate issued a warrant authorizing a search of Fleming’s person, three residences used by Fleming and his mother, and two vehicles registered in the name of Fleming’s mother, for several items including methamphetamine and any other controlled substances and drug paraphernalia and firearms. The warrant was based on the affidavit of the same date by Eureka Police Department Detective Gary Cooper. The affidavit described information that the officer had learned about Fleming’s 2004 drug activities and his arrest for sale and transportation of controlled substances that same year, and Fleming’s December 2011 arrest for possession of a controlled substance for sale and being a convicted felon in possession of a taser and a firearm after his detention and a search of a hotel room rented to Fleming. Detective Cooper also received information from other police officers that on April 15, 2012, a confidential informant (CI) had gone to Fleming’s current residence and purchased methamphetamine. The CI had known Fleming for several years and gone to his residence on dozens of occasions during the past year and purchased an “eight-ball” (about 3.5 grams of methamphetamine) each time. The CI described how Fleming used a detached building on his mother’s property for methamphetamine sales. The methamphetamine was in a cupboard or some type of safe-like box in an area a few feet into the building. The CI reported that the bulk of the methamphetamine (currently one- half pound) was kept in some type of bag or box under the residence of Fleming’s mother. The CI was an on-again/off-again user of methamphetamine for about 20 years. The CI had been arrested and convicted for drug-related offenses. The CI was trying to live a clean and sober lifestyle, but it was difficult because Fleming provided methamphetamine at such a low price. The CI believed that if Fleming was no longer selling methamphetamine, it would be easier for the CI to stop using methamphetamine.