P. v. Romero

Filed 2/15/07  P. v. Romero CA5

NOTTO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b).  This opinion has not been certified for publication or orderedpublished for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from judgments of the Superior Court of Fresno County.  Mark W.Snauffer, Adolfo M. Corona and Gary R. Orozco, Judges.

            Thomas M. Singman, under appointment by theCourt of Appeal, for Defendant and Appellant Carlos Romero.

            Henry Zimmerman, under appointment by the Courtof Appeal, for Defendant and Appellant Guillermo L. Gonzalez.

            Grace Lidia Suarez, under appointment by theCourt of Appeal, for Defendant and Appellant Jose Reyes Gonzalez.

            Bill Lockyer, Attorney General, Robert R. Anderson,Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General,Stan Cross and Julie A. Hokans, Deputy Attorneys General, for Plaintiff andRespondent.

-ooOoo-

            Following the denial of their motions totraverse the search warrantand suppress evidence found in the search, appellants Jose Reyes Gonzalez(Jose), Guillermo Lugo Gonzalez (Guillermo) and Carlos Romero (Carlos) enteredthe following no contest pleas and admissions:  (1) Jose pled no contest toconspiracy to commit the crime of transportationof cocaine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, §11352, subd. (a) (count 1)) and possession of an assault weapon(Pen. Code, § 12280, subd. (b) (count 7), and admitted allegations associatedwith count I that the substance exceeded four kilograms by weight (Health &Saf. Code, § 11370.4, subd. (a)(2)) and he was a principal armed with a firearmin the commission of the crime (Pen. Code, § 12022, subd. (a)(1)); (2)Guillermo pled no contest to count 1 and admitted allegations that he suffereda prior conviction of possession of a controlled substance with the intent tosell (Health & Saf. Code, § 11370.2, subd. (a)) and the substance exceededfour kilograms by weight (Health & Saf. Code, § 11370.4, subd. (a)(2)); and(3) Carlos pled no contest to transportation for sale of cocaine (Health &Safe. Code, § 11352, subd. (a) (count 5)).  All other counts and allegationsagainst appellants were dismissed.  The court sentenced appellants to stateprison as follows:  (1) Jose to 10 years; (2) Guillermo to 13 years; and (3)Carlos to four years. 

            On appeal, appellants contend the trial courterred in denying their motions to traverse the search warrant and suppressevidence retrieved as a result of the search.  Appellants have requested thiscourt independently review a sealedportion of the search warrant and the reporter's transcript of an in camera hearing the trialcourt conducted.  We will affirm the judgment. 

FACTUAL ANDPROCEDURAL BACKGROUND

            On November 13, 2001, the Fresno CountySheriff's Department received confidential information that two individuals,later identified as Guillermo and Benito Gonzalez, were planning to transportcocaine via a tractor-trailer to either Atlanta or New Jersey.  Sheriff'sdeputies recognized the names and recalled the two owned a Mendota truckingcompany, Gonzalez Trucking Company (GTC), and had served time in federal prisonfor narcotics trafficking.  That day,the deputies drove to Mendota and confirmed GTC was an active and functionalcompany.  The deputies began surveillance of GTC. 

            The following day, deputies saw atractor-trailer rig leave GTC.  A check of the license plate revealed thevehicle belonged to Jose Gonzalez and GTC.  The tractor-trailer stopped so thedriver could use a pay phone and then drove non-stop to a Delano warehouse. Deputies observed the tractor-trailer being loaded with pallets of whiteboxes.  The tractor-trailer then left the warehouse and returned to GTC. 

            That same day, Sheriff's Detective BrettMcAndrews sought a search warrant of a residence and large building located onGTC property, as well as the tractor-trailer rig.  The warrant was based onDetective McAndrews's affidavit and an attachment which contained a statementof probable cause.  Detective McAndrews requested the attachment be sealedpursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), toprotect the informant's identity and maintain his or her safety, and kept inthe custody of the Fresno County Sheriff's Department.  The magistrate approvedthis request and issued the search warrant. 

            On November 15, 2001, the same tractor-trailerrig was seen leaving GTC.  Deputies initiated a traffic stop and contacted thedriver, later identified as Carlos, and passenger, Guillermo, both of whom weredetained.  The deputies returned the tractor-trailer to GTC, where theyexecuted the search warrant.  Inside the tractor-trailer deputies found severalpallets of grapes.  Mixed within several boxes of grapes were approximately 25kilograms of cocaine, wrapped in individual bricks, which wholesales forapproximately $15,000 to $18,000 per kilogram. 

            Deputies then attempted a search of theresidence, which they forced their way into after giving sufficientâ€