P. v. Molina

Filed 10/4/06 P. v. Molina CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary Daigh, Judge. Affirmed.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Based on information from a confidential informant, a search warrant was issued to search defendant and appellant Antelmo Ayon Molina’s residence. The search warrant and affidavit were sealed. Molina moved, under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs),^[1] to unseal the search warrant and affidavit and for disclosure of the informant’s identity. After an in camera hearing, the motions were denied. Molina thereafter renewed his motions before Judge Gary Daigh, who held that he could not revisit the motions. Molina now appeals, contending that Judge Daigh erred in not hearing de novo his motions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On February 25, 2005, police officers searched a residence pursuant to a search warrant. Molina was in a rear bedroom. In that bedroom, officers found firearms, heroin, and $14,000 in a purse. Officers also recovered from the residence baggies containing marijuana, rock cocaine, powder cocaine, and methamphetamine. They also found a digital scale and unused sandwich baggies.

II. Procedural background.

Before the preliminary hearing was held, Judge John Cheroske heard Molina’s motions to disclose the informant’s identity and motion under Hobbs.^[2] The court held an in camera hearing, during which it took testimony from the search warrant’s affiant. After the in camera hearing, the court denied the motions, finding that “there is [an] insufficient showing to cause this person the first informant to be disclosed or the second person that was referred to as the actual alleged purchaser of the cocaine.” The court also found that unsealing the affidavit would cause other investigations to be impeded, and that “there appears to be a realistic threat and safety of that person . . . .” The preliminary hearing then proceeded, and Molina was held to answer.

Thereafter, Molina filed a motion to quash and to traverse the warrant and to suppress evidence under Penal Code^[3] section 1538.5. He also filed another motion to disclose the confidential informant’s identity and for discovery and a motion to unseal the search warrant affidavit. Judge Daigh heard the motions. He began by saying that “it’s inappropriate for me to act as an appellate court on the motion to disclose the identity of the informant and to unseal the search warrant which has been ruled upon by another judge. You have writ and appeal remedies . . . so I think it’s inappropriate for me to revisit those issues.” Molina’s counsel responded that he was asking for de novo review.^[4] But Judge Daigh denied the motions to disclose the informant’s identity and to unseal the search warrant.

The court then proceeded to conduct an in camera hearing on Molina’s suppression motion.^[5] Thereafter, the court said it had reviewed the entire search warrant and that “I think it’s inappropriate for me to unseal it. It’s obvious to me there is probable cause. . . . . . . . . . Now that I’ve seen it, I understand why Judge Cheroske did what he did but I am not going to revisit that issue but there is probable cause, which it’s tough because you have to take my word for it and you can’t see it and it’s inappropriate for me to let you see it.”

On August 8, 2005, Molina withdrew his guilty plea, pled guilty to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378), and admitted that he was personally armed with a firearm (§ 12022). The trial court sentenced him to the high term of three years in prison plus a consecutive four years on the firearm enhancement.

DISCUSSION

I. The trial court did not err in refusing to hear de novo the motions that had been previously denied.

Molina contends that the trial court (Judge Daigh) erred in refusing to hear de novo his motions to unseal the affidavit and to disclose the informant’s identity, which Judge Cheroske had previously denied. We reject this contention.

In making this contention, Molina relies on section 1538.5, subdivision (m), which states, in 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.” (§ 1538.5, subd. (m); see also People v. Lilienthal (1978) 22 Cal.3d 891, 896 [section 1538.5, subdivision (m), requires a motion to suppress to be raised in the superior court, even if it has been raised at a preliminary hearing, to preserve the issue for appellate review].)

Based on subdivision (m), Molina reasons that because it was necessary for him to make a motion to suppress evidence in the superior court to preserve his appeal rights, it was also necessary for him to simultaneously renew his motions to unseal the search warrant and affidavit and to disclose the informant’s identity (Hobbs motions), because the Hobbs motions and the suppression motion were “inextricably” intertwined.

Certainly, information in the sealed search warrant and affidavit was integral to Molina’s suppression motion. But it does not necessarily follow that, to preserve appellate review, Hobbs motions must be made with a suppression motion in the superior court, where, as here, those Hobbs motions have been previously denied by a magistrate at a preliminary hearing. Rather, Hobbs, supra, 7 Cal.4th at pages 955-957, suggests it is not necessary to renew those motions.

In Hobbs, defendant moved to unseal search warrant documents, to quash the warrant and to suppress evidence, to traverse the warrant, and to disclose the confidential informant’s identity. The trial court denied the motions, and defendant then pled no contest. On review, the California Supreme Court considered whether defendant’s no contest plea precluded appellate review of her Hobbs motions. The court, relying on section 1538.5, subdivision (m), held that appellate review was not precluded “if defendant’s challenge to the sealing of the affidavit was directed to the legality of the search. . . .” (Hobbs, supra, 7 Cal.4th at p. 956.) In so holding, Hobbs cited with approval People v. Seibel (1990) 219 Cal.App.3d 1279, in which the defendant repeatedly raised the issue of the propriety of sealing the affidavit, although he did not expressly renew the issue in connection with his motion under section 1538.5. The Seibel court said the propriety of sealing the affidavit was “ ‘implicitly renewed’ “ in the suppression motion. (Hobbs, at p. 956.)

Similarly, Molina had already raised the propriety of sealing the search warrant and affidavit and disclosing the informant’s identity before Judge Cheroske. Those issues were impliedly renewed by virtue of the motion to suppress before Judge Daigh. In that suppression motion, Molina noted that a portion of the search warrant and affidavit were sealed, and that he was therefore unable to make a complete showing regarding probable cause. The propriety of sealing the search warrant documents and the informant’s identity were thus raised in the suppression motion, and, although Molina was not precluded from renewing the Hobbs motions, it was not necessary for him to do so to preserve appellate review.

Nor was Judge Daigh required to reconsider them de novo, even though the issues those motions raised were integral to the suppression motion,. Had there been some new evidence relevant to those motions then perhaps Judge Daigh might have been required to reconsider them. For example, section 1538.5, subdivision (i), provides that if a suppression motion is made and denied at a preliminary hearing, the motion may be renewed at a special hearing. But the evidence presented at the special hearing shall be limited to the preliminary hearing transcript and to evidence that could not reasonably have been presented at the preliminary hearing. (§ 1538.5, subd. (i).) The magistrate’s findings at the preliminary hearing shall be binding on the court at the special hearing as to evidence or property not affected by evidence presented at the special hearing. (Ibid.; see also People v. Bishop (1993) 14 Cal.App.4th 203.)

Here, Judge Cheroske denied the Hobbs motions at the preliminary hearing. Molina sought to renew them before Judge Daigh in conjunction with his suppression motion, but he neither made a showing nor argued that there was new evidence relevant to those motions. Therefore, while it was clearly appropriate and necessary for Judge Daigh to review the sealed documents, it was not necessary for him to revisit the propriety of retaining their confidentiality. Nor is it clear that “an orderly judicial process” requires motions under Hobbs to be heard de novo with a suppression motion. Rather, Judge Daigh was able to review the sealed search warrant and affidavit at the suppression hearing, and nothing in the record indicates that Judge Cheroske’s prior rulings impeded Judge Daigh’s later consideration of the suppression motion.

We therefore hold that Molina was not entitled to a de novo hearing on his motions to unseal the search warrant and affidavit and to disclose the informant’s identity.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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^[1] Hobbs, supra, 7 Cal.4th 948, sets forth procedures a trial court must follow when, after a search warrant and affidavit have been sealed because they are based on information from a confidential informant, a defendant brings a motion to quash or to traverse the warrant.

^[2] It is unclear whether Molina’s motions were oral or were also in writing. The record does not contain a copy of a written motion or motions.

^[3] All further undesignated statutory references are to the Penal Code.

^[4] Molina clarified that the suppression motion had never been heard by another judge and “that I think shouldn’t even be part of our discussion right now except that the motion to unseal is at this juncture inextricably intertwined.” Judge Daigh agreed that the suppression motion was not yet at issue.

^[5] The reporter’s transcript from that in camera hearing has been filed on appeal.