PEOPLE v. YAFFE

No. D057923.

THE PEOPLE, Plaintiff and Respondent, v. JARED RAVIN YAFFE, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

Filed January 4, 2012.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HUFFMAN, Acting P. J.

The court denied Jared Ravine Yaffe's Penal Code1 section 1538.5 motion to suppress evidence gathered under a search warrant because it found probable cause to issue the search warrant existed. Following the court's ruling, Yaffe pleaded guilty to three counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)).2 As to each count, Yaffe admitted he committed the crimes against more than one victim within the meaning of section 667.61, subdivisions (b), (c), and (e). The court sentenced Yaffe to prison for 45 years to life, which was consistent with the terms of Yaffe's plea bargain.

Yaffe appeals, arguing the court committed reversible error in denying his motion to suppress and declining to hold a hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks) allowing him to challenge the statements contained in the affidavit of probable cause. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The San Diego Police Department (SDPD) obtained a search warrant to search Yaffe's residence and car for, among other things, sexually explicit material involving children. The search warrant allowed the seizure of computer equipment and/or media.

As the basis for the search warrant, the SDPD submitted the affidavit of Sharlene Ramirez, a 24-year veteran of the SDPD assigned to the Internet Crimes Against Children Task Force. The affidavit detailed Ramirez's experience investigating over 500 cases involving sexual assault allegations including child molestation, 40 hours of formal training regarding sexual assault and child abuse through the Peace Officers Standards and Training, 140 hours of training involving internet crimes and sexual exploitation of children through the Office of Juvenile Justice and Delinquency Prevention, and 40 hours of training in the area of internet investigations through the Federal Bureau of Investigation's Innocent Images Program. The affidavit further discussed Ramirez's attendance at two one-week educational conferences providing training and education focused on child abuse and internet crimes against children, and an eight-hour course in computer forensics taught by the Regional Computer Forensics Laboratory.

Based upon her training, Ramirez, in her affidavit, defined a preferential sex offender as a person whose primary sexual interest is children. She continued to explain preferential sex offenders receive sexual gratification from actual contact with children and from fantasies involving children, including the use of electronic media. She also discussed that preferential sex offenders often collect sexually explicit material consisting of photographs, video tapes, books, and slides and rarely, if ever, dispose of such material.

The affidavit also detailed Ramirez's interaction with Ricardo Casas, an informant who knew Yaffe personally. Casas called the Boystown Hotline, a 24-hour crisis, resource and referral hotline, to report child molestation. Casas informed the Boystown Hotline that his friend, Yaffe, showed him a pornographic video of Yaffe with a seven to 10-year-old child. He identified Yaffe as about 35 years old, white male, 5'7" height, 180-200 pounds, and gave them a phone number.

The affidavit included the content of discussions between Ramirez and Casas. He informed her that he used to hang out with Yaffe. Yaffe would buy Casas and his underage friends alcohol and get drunk with them. Yaffe would pay Casas or allow Casas to spend the night if Casas would allow Yaffe to perform oral sex on him. Casas also told Ramirez that Yaffe had begun to confide in him and told him that Yaffe prefers kids sexually, meets minors online and convinces them to come to San Diego to have sex with him, and pays certain babysitters $200 to allow him access to the children they are babysitting.

Casas also told Ramirez he had recently been to a condominium where Yaffe was staying with a friend about two weeks prior to calling the Boystown Hotline. Casas said Yaffe had shown him two videos involving sex acts with children.

The affidavit explained Casas declined to assist with a controlled phone call to Yaffe because he did not want Yaffe to know he "was involved in the initial report." In addition, Casas told Ramirez that the San Diego homosexual community was small and he did not want to get the reputation he was untrustworthy.

As set forth in the affidavit, Casas drove with Ramirez to downtown San Diego and located Yaffe's residence. Ramirez attempted to verify Yaffe's current home address by requesting a subpoena be sent to AT&T for his cell phone number, which was provided by Casas. The number belonged to Yaffe, but the address associated with the phone number was a business address where clients maintain postal boxes: Hillcrest Postal Place.

In addition, the affidavit stated Ramirez subsequently contacted Casas who confirmed Yaffe was still living in the downtown condominium. Ramirez then had the security guard of the condominium complex identify Yaffe from a picture. The security guard also confirmed Yaffe was living in the condominium.

The affidavit also stated Ramirez conducted a background check on both Casas and Yaffe, but did not find any criminal history on either individual.

Based upon Ramirez's affidavit, the court issued a search warrant. Under the search warrant, the SDPD searched Yaffe's residence and discovered a large amount of child pornography. Based upon the evidence seized, the People charged Yaffe with 20 counts of criminal conduct relating to the molestation of children.

Yaffe brought a motion to suppress the evidence gathered under the search warrant and also sought a Franks hearing. After the court denied the motion and declined to hold a Franks hearing, Yaffe pleaded guilty to three counts of committing a lewd act upon a child under the age of 14, agreed to a sentence of 45 years to life, but reserved his right to appeal the denial of the motion to suppress. Yaffe then appealed.

DISCUSSION

"`The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]'" (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)

Yaffe contends the court erroneously denied his motion to suppress because probable cause did not support the issuing of the search warrant. "Probable cause" justifying a search warrant means "a fair probability that . . . evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238.)

"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. [Citations.] `The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citations.] . . . The magistrate's determination of probable cause is entitled to deferential review. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)

Here, Yaffe first attacks the court's conclusion that Casas was a citizen informant because Casas admits Yaffe paid him to perform a sex act. Therefore, Yaffe argues Casas was a criminal informant whose information must have been corroborated. (See People v. Smith (1976) 17 Cal.3d 845, 850-851.) Because Casas's information was not corroborated, Yaffe contends probable cause to issue the search warrant did not exist. We reject this contention.

Yaffe's claim that Casas is a criminal informant rests on his lack of understanding of the distinction between a citizen informant and a criminal informant. He claims Casas is a criminal informant because he admits Yaffe paid him to perform a sex act (perhaps multiple times). This admission does not transform Casas into a criminal informant.

"The courts have recognized a distinction between informers who are virtual agents of the police and `citizen informants' who are chance witnesses to or victims of crime. The former are often criminally disposed or implicated, and supply their `tips' to the authorities on a recurring basis, in secret, and for pecuniary or other personal gain. The latter are innocent of criminal involvement, and volunteer their information fortuitously, openly, and through motives of good citizenship." (People v. Ramey (1976) 16 Cal.3d 263, 268-269.)

Casas possesses none of the characteristics of a criminal informant. He does not appear to be criminally disposed. He did not provide information to the SDPD for pecuniary or personal gain. Instead, Casas called the Boystown Hotline to report Yaffe's activities. The Boystown Hotline representative, in turn, asked Casas to report the incident to the SDPD. Casas also told Ramirez he was "totally repulsed" by what Yaffe showed him and ultimately decided to report it after first wondering what he should do.

Further, the fact Yaffe had paid Casas to perform a sex act does not convert Casas into a "willing participant" in a "criminal society" as Yaffe urges. Casas played no role in Yaffe's conduct that lead to his conviction. Indeed, when Yaffe asked Casas to provide him with children to molest, Casas refused. Casas simply was not a criminal informant.

Because we are satisfied Casas was a citizen informant, he is presumptively reliable. (See People v. Hill (1974) 12 Cal.3d 731, 761, overruled on other grounds in People v. Devaughn (1977) 18 Cal.3d 889, 896, fn. 5.) No further corroboration of the information provided by Casas was necessary.

Yaffe next contends the information in the affidavit was stale. We disagree.

Information that is remote in time may be deemed stale and thus untrustworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) However, "[n]o bright-line rule defines the point at which information is considered stale." (People v. Carrington (2009) 47 Cal.4th 145, 163.) "`[T]he question of staleness depends on the facts of each case.'" (Ibid.) "Courts have upheld warrants despite delays between evidence of criminal activity and the issuance of a warrant, when there is a reason to believe that criminal activity is ongoing or that evidence of criminality remains on the premises." (Id. at p. 164.)

Yaffe asserts the two-month gap between when he showed Casas the video depicting child pornography and the preparation of Ramirez's affidavit rendered the information stale. In support of his staleness argument, Yaffe relies upon People v. Hirata (2009) 175 Cal.App.4th 1499 (Hirata).) His reliance on Hirata, however, is misplaced.

Hirata involved an 82-day delay between evidence of drug dealing and the search of the premises. (Hirata, supra, 175 Cal.App.4th at p. 1504.) Thus, the court did not believe the drugs sought under the search warrant would be found on the premises. (Id. at pp. 1504-1505.) We do not have the same concern. The evidence sought here involves child pornography and videos depicting Yaffe molesting children. Ramirez, who has considerable experience in investigating child molesters and collectors of child pornography, stated in her affidavit that such individuals tend to collect videos like the one Yaffe showed Casas. Thus, Ramirez was confident that evidence of child pornography would still be found in Yaffe's residence. This is not a drug dealing case like Hirata. We conclude the two month passage of time between when Casas saw Yaffe's video and the application for a search warrant did not render the information stale on the record before us. (See People v. Stipo (2011) 195 Cal.App.4th 664, 672 ["Substantial delays do not render warrants stale where the defendant is not likely to dispose of the items police seek to seize."]; United States v. Lacy (9th Cir. 1997) 119 F.3d 742, 745-746 [a 10-month gap between the time the affidavit stated the defendant had downloaded child pornography images from a website, and the application for a warrant to search his house and computer did not render the information too stale].)

Yaffe also argues Ramirez's affidavit is inadequate because it assumes "preferential sex offenders" do not dispose of child pornography and Yaffe is a "preferential sex offender." In other words, Yaffe's contends there is insufficient foundation in the affidavit to establish Yaffe would collect child pornography. Yaffe's argument is without merit.

In her affidavit, Ramirez defines a "preferential sex offender" as someone whose primary sexual interest is in children. She bases this description on her training and experience, which includes 24 years with SDPD, her current assignment to the Internet Crimes Against Children Task Force, investigating over 500 cases involving sexual assault allegations including child molestation, 40 hours of formal training regarding sexual assault and child abuse, 140 hours of training involving internet crimes and sexual exploitation of children, and 40 hours of training in the area of internet investigations. We are satisfied Ramirez has the necessary experience and training to define "preferential sex offender." (Cf. People v. Nicholls (2008) 159 Cal.App.4th 703, 711 (Nicholls) ["[L]aw enforcement officers may draw upon their expertise to interpret the facts in a search warrant application, and such expertise may be considered by the magistrate as a factor supporting probable cause"].)

Moreover, the affidavit also explains Yaffe told Casas that he prefers children sexually. In addition, the affidavit describes Yaffe showing Casas videos depicting sex acts with children, including one involving Yaffe. Yaffe, however, ignores these facts in arguing the affidavit lacks sufficient foundation that he is a "preferential sex offender" and argues Nicholls, supra, 159 Cal.App.4th 703 is not controlling. We are not persuaded. Like here, the affiant in Nicholls was a police officer. (Id. at p. 705.) Also, the court found the affiant's experience and training allowed him to conclude people who molest children often collect child pornography. (Id. at p. 711.) Yaffe offers no compelling reason why Ramirez's affidavit would prove less convincing than the affidavit in Nicholls. Ramirez has more experience than the affiant in Nicholls and Casas provided information showing Yaffe molests children and keeps recordings of these depravities. Contrary to Yaffe's argument, Nicholls is not distinguishable on this point.

We conclude the record supports the court's finding of sufficient probable cause for issuance of the search warrant, and we independently conclude the search was reasonable under the Fourth Amendment.

Yaffe's final argument is the court erred by rejecting his arguments the affidavit omitted certain material facts and he was entitled to a hearing challenging the affidavit under Franks, supra, 438 U.S. 154.

Under Franks, a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. (Franks, supra, 438 U.S. at pp. 155-156; People v. Panah (2005) 35 Cal.4th 395, 456 (Panah ).) "There is . . . a presumption of validity with respect to the affidavit supporting the search warrant. . . . There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. . . . Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted . . . is only that of the affiant, not of any nongovernmental informant." (Franks, supra, 438 U.S. at pp. 171-172.)

We review denial of a Franks hearing de novo. (Panah, supra, 35 Cal.4th at p. 457.) We conclude the trial court acted properly. Yaffe's motion was unaccompanied by any of the evidentiary material required of the moving party. For example, he provided three "material facts" he claims were omitted from Ramirez's affidavit. These facts, however, were not material.

Yaffe argues Ramirez's affidavit omitted the following facts. First, Casas described Yaffe's condo as only two stories when it was "many stories tall." Second, Yaffe told the Boystown Hotline operator Yaffe lived by First Street near a gas station, but there was no gas station near the searched condominium. Third, Ramirez told Casas the telephone records subpoenaed based upon the telephone number provided by Casas "did not pan out."

The first two facts ostensibly call into question Casas's knowledge of where Yaffe lived, i.e., the searched condominium. However, the affidavit clearly states Casas accompanied Ramirez downtown and located Yaffe's residence. Therefore, even if Casas previously incorrectly described the size and location of Yaffe's residence, he was able to locate it with Ramirez. The first two omitted facts thus are inconsequential.

Yaffe's purported third omitted fact also is insignificant. The affidavit includes Ramirez's explanation that the telephone number provided by Casas belonged to Yaffe, but the address on file with the cell phone company was a business address for Hillcrest Postal Place. Thus, the phone number did not "pan out" because it did not lead Ramirez to Yaffe's residence. The fact the affidavit did not include the conversation between Ramirez and Casas where she conveyed this fact to him is immaterial. The substance of the omitted fact, the cell phone number Casas provided did not allow Ramirez to confirm the address of Yaffe's residence, was before the court.

Even if we were to assume the omitted facts were material they would still be insufficient for the "substantial showing" required by Franks. (People v. Benjamin (1999) 77 Cal.App.4th 264, 272.) Yaffe did not provide an offer of proof to the court that Ramirez intentionally omitted the three facts or acted with reckless disregard for the truth in omitting them. (See Franks, supra, 438 U.S. at p. 156.) Further, even if we were to insert the omitted facts into Ramirez's affidavit, we are satisfied probable cause would still exist. (Cf. People v. Lopez (1985) 173 Cal.App.3d 125, 134-135.) The court did not err in denying Yaffe's request for a hearing under Franks.

DISPOSITION

The judgment is affirmed. We order the superior court to correct the abstract of judgment to reflect that Yaffe pleaded guilty to three counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)).

HALLER, J. and AARON, J., concurs.

FootNotes


1. Statutory references are to the Penal Code unless otherwise specified.
2. The abstract of judgment incorrectly indicates Yaffe pleaded guilty to two counts of violating section 288, subdivision (a), and one count of violating section 288a, subdivision (c)(1).

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