P. v. Perez

Filed 2/26/10 P. v. Perez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

Defendant Gustavo Sanchez Perez was charged by complaint with possession of marijuana for sale, and other offenses stemming from a search of his residence pursuant to a warrant supported in part by a sealed affidavit. Before his preliminary hearing, defendant moved unsuccessfully under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) to unseal the search warrant affidavit, quash the warrant, and suppress the evidence seized from his residence. Defendant waived a preliminary hearing and was charged by information with the same offenses. To preserve his right to postconviction appellate review of the searchs validity, defendant renewed his motion to quash and suppress evidence in the superior court. The court summarily denied the motion, believing it was bound by the pre-information ruling concerning the affidavit. Defendant thereafter pleaded guilty to the possession-for-sale count as part of a negotiated disposition, and filed this appeal requesting that we conduct an independent review of the sealed material to determine under Hobbs whether he is entitled to withdraw his plea and further litigate the sufficiency of the warrant. Having done so, we affirm the judgment.

I. BACKGROUND

Defendant was charged by information with possession of marijuana for sale (Health & Saf. Code,  11359; count one), possession of an assault weapon (Pen. Code,  12280, subd. (b); count two), and receiving stolen property (Pen. Code,  496, subd. (a); count three). With respect to the drug count, the information alleged that the principal was armed (Pen. Code,  12022, subd (a)(1)).

A. Facts[1]

On October 14, 2008, agents of the Mendocino Major Crimes Task Force served a search warrant at defendants residence in Boonville, California. Agents found two garbage bags in defendants bedroom, each containing one-pound oven bags of manicured marijuana. One bag held six pounds of marijuana and the other five pounds. A 12-gauge shotgun and two nine-millimeter pistols, all loaded, were also found in the bedroom. A bag of marijuana seeds and $1,740 in U.S. currency were found under the bed. A marijuana plant was found in a vegetable garden in the backyard of the residence and a Mak-90 assault weapon and AR-15 rifle were found hidden, along with ammunition, under a piece of plywood 50 feet away. No marijuana smoking paraphernalia was found in the residence. At least one of the weapons was later found to have been reported stolen.

B. Trial Court Proceedings

The allegations in the information were charged initially in a three-count complaint. Defendant pleaded not guilty to the charges and denied the arming enhancement allegation. On December 16, 2008, prior to a preliminary hearing, defendant moved unsuccessfully to unseal the search warrant affidavit, quash the search warrant and suppress evidence pursuant to Hobbs. The court concluded the evidence reviewed in camera supported the informants reliability and was sufficient to establish probable cause for issuance of the search warrant. The court denied defendants motion and ordered the record of the in camera proceedings and the search warrant affidavit to be sealed. The court declined to order the search warrant redacted, finding that such action would tend to identify and endanger the informant.

Defendant thereafter waived his right to a preliminary hearing and related constitutional rights. The information was filed on January 6, 2009. Defendant pleaded not guilty to the charges in the information and denied the arming enhancement allegation.

On February 17, 2009, defendant moved to unseal the search warrant affidavit, to quash the search warrant, and to suppress evidence pursuant to Hobbs and Penal Code section 1538.5.[2] The People filed no written opposition but contended at the hearing on the motion that the motion had previously been heard and denied, and the court was therefore precluded from reconsidering the previous ruling regarding the affidavit. The court concluded it was bound by the finding made on the earlier motion, declined to review the sufficiency of the affidavit, and denied the motion.

Pursuant to a negotiated disposition, defendant thereafter withdrew his prior pleas, pleaded guilty to possession of marijuana for sale and admitted the special arming allegation. Counts two and three were dismissed. The court suspended imposition of sentence and placed defendant on formal probation for 36 months on condition that he serve 240 days in county jail.

This timely appeal followed.

II. DISCUSSION

Defendant contends the lower court erred when it declined to conduct an in camera review of the sealed search warrant pursuant to Hobbs. According to defendant, the unsealed portion of the warrant fails to provide evidence supporting its issuance. Unless the sealed portion provides reliable and credible evidence supporting probable cause, defendant maintains the motion to suppress should have been granted and the evidence obtained during the search of his residence suppressed. He asks this court to conduct its own independent appellate review of the sealed search warrant affidavit, the sealed in camera proceedings in the trial court, and the order denying his motion to suppress. If this court finds the sealed affidavit insufficient to establish probable cause, defendant asks that we reverse the order denying his motion to suppress and remand the case with instructions to the trial court to allow him to withdraw his guilty plea and grant the motion to suppress.

The People maintain that any error on the part of the trial court in declining to review the sealed affidavit is moot. According to the People, by conducting our own independent review of the search warrant affidavit, the in camera hearing, and the sealed exhibit, this court should be able to confirm that the warrant was supported by probable cause without the necessity for a remand or reversal.

We agree with defendant that the trial court erred in this case. Penal Code section 1538.5, subdivision (m) provides in relevant part: A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.

The phrase at some stage of the proceedings in the statute has been construed by our Supreme Court to refer to the proceedings in the superior court. (People v. Lilienthal (1978) 22 Cal.3d 891, 896.) Thus, to appeal a ruling on a suppression motion following a plea of guilty, subdivision (m) of Penal Code section 1538.5 requires that the motion must have been brought in superior court. (People v. Lilienthal, at pp. 896897.) A contrary rule would allow the appellate court to reverse a superior court judgment for error it did not commit and that was never called to its attention. (Id. at p. 896.) Notwithstanding trial court unification, the case law holds that when a defendant brings a pre-preliminary hearing motion to suppress, as occurred in this case, the right to appellate review is only preserved if the motion is renewed in the superior court after the defendant is held to answer. (People v. Garrido (2005) 127 Cal.App.4th 359, 361, 364365.)

To preserve his right of appeal in this case, the defendant was therefore required to renew his motion to suppress after the filing of the information. The procedure to be followed is established by Penal Code section 1538.5, subdivision (i).[3] By its terms, subdivision (i) does not specifically address the procedures to be followed when a defendant brings a motion to suppress before the preliminary hearing. The statute generally provides that motions to suppress in response to felony complaints are to be brought at the preliminary hearing. (See 1538.5, subd. (f)(1).) We view the two situations as functionally equivalent for purposes of subdivision (i), however. In particular, we read subdivision (i) to mean that the superior court should have reviewed the sealed portions of the affidavit, as well as the transcript of the hearing on defendants original motion to quash and suppress, including both the sealed and public portions.

Most significantly, defendant was entitled to a determination on the merits of his renewed motion in the superior court, under the guidelines established in Hobbs: [I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], the court should proceed to determine whether, under the totality of the circumstances presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] In reviewing the magistrates determination to issue the warrant, it is settled that the warrant can be upset only if the affidavit fails as a matter of law [citation] to set forth sufficient competent evidence supportive of the magistrates finding of probable cause . . . . [Citation.] [] If the court determines . . . that the affidavit and related materials furnished probable cause for issuance of the warrant . . . [citation], the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.] If . . . there is a reasonable probability the defendant would prevail on his motion to quash the warrant[,] . . . then the district attorney must be afforded the opportunity to consent to disclose the sealed materials to the defense, after which the motion to quash can proceed to decision, or alternatively, suffer the entry of an order adverse to the People on the motion to quash the warrant. [Citation.] (Hobbs, supra, 7 Cal.4th at p. 975.)

Although defendant received no determination on the merits in the superior court, no remand for that purpose is necessary. This court may conduct its own independent review of the sealed search warrant affidavit and the proceedings below. We have reviewed the sealed affidavit, the sealed transcript of the in camera hearing, and the unsealed portion of the search warrant affidavit. We find that disclosing the sealed portion of the affidavit in its entirety, or any substantive excerpts from it, would have revealed or tended to reveal the identity of a confidential informant. Additionally, we find there is no reasonable probability that defendant would have prevailed on a motion to quash the warrant or suppress evidence if he had access to the sealed materials. Taken together, the sealed and unsealed portions of the warrant are sufficient to establish probable cause. The sealed portion exhibits no inconsistencies, falsehoods, or omissions that undermine its value, nor does it furnish any plausible grounds for arguing that the confidential informant was unreliable. The sealed exhibit establishes that the informant was, in fact, reliable.

Because there is no reasonable probability that defendant would have prevailed on a motion to quash the search warrant or suppress evidence, there is no basis for reversing the judgment or allowing him to withdraw his plea and further litigate the issue of probable cause.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, Acting P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.

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[1] The facts are drawn from the probation officers report.

[2] Penal Code section 1538.5, discussed further post, authorizes a defendant to move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure. ( 1538.5, subd. (a)(1).)

[3] Penal Code section 1538.5, subdivision (i) provides in relevant part: If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing . . . the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial . . . . [I]f the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was made at the preliminary hearing, . . . evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing . . . . The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing . . . . (Italics added.)