Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 0516658
Richman, J.
Defendant Michael Claude Wilen is a lifetime criminal. In late 2005, he and Thomas Bonnetta were discovered operating a methamphetamine lab in Bonnetta’s home. As a result of this discovery, Wilen and Bonetta were charged with numerous drug-related charges; the information also had equally numerous enhancement allegations based on their considerable number of past convictions.
Pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks), Wilen moved for an evidentiary hearing to traverse and quash the search warrant used to search the house. The trial court denied the motion on the ground that it was procedurally deficient. Wilen and Bonnetta then plead guilty to all of the charges and admitted all of the enhancement allegations against them, following which Wilen was sentenced to state prison for an aggregate term of six years and eight months.
Wilen filed a timely notice of appeal. His sole contention is that his motion was erroneously denied. We conclude there was no error in the trial court’s ruling. However, the People also appealed, and we have concluded in A115732, filed on November 15, 2007, that imposition of the sentences for Wilen and Bonnetta were defective because the trial court did not comply with the formalities required by Penal Code section 1385. Accordingly, we reverse as to the sentence but otherwise affirm the judgment of Wilen’s conviction.
BACKGROUND
On the evening of July 8, 2004, a deputy sheriff made a traffic stop of a red Camaro on a highway in Contra Costa County. Thomas Bonnetta was a passenger in the car. Behind Bonnetta’s seat the deputy found two cans of lye, which the deputy knew could be used in the illegal manufacture of methamphetamine. The deputy learned that Bonnetta was on parole, and thus subject to a condition of parole authorizing a search of his residence. The deputy took Bonnetta to the house where Bonnetta lived. A cursory search of the premises uncovered baggies containing a white crystalline substance, and more lye in Bonnetta’s bedroom. The deputy also found in Bonnetta’s bedroom a five-gallon jug containing what the deputy termed “an unknown substance.” Believing that methamphetamine was being manufactured at the site, the deputy summoned assistance from more experienced officers. Wilen paid rent for one of the bedrooms in the house.
Specialists conducted a more thorough search, acting pursuant to a warrant. They found the equipment and materials evidencing an on-going operation for the manufacture and sale of methamphetamine. One of the officers asked Bonnetta, after appropriate Miranda warnings, for “his side of the story.” Bonnetta replied that he was “pulling pills to make money.” The officer explained what this meant: “ ‘Pulling pills’ is when you take the pseudoephredrine out from over-the-counter pill medication to use in the manufacturing process of methamphetamine.” The “forensic toxicologist” who analyzed the five-gallon jug detected “the presence of methamphetamine.”
The above information is taken from the transcript of the preliminary examination, which began on October 27 and concluded on October 31, 2005. On November 10, 2005, the District Attorney of Contra Costa County filed an information by which Bonnetta and Wilen were jointly charged with four counts: (1) manufacturing methamphetamine, in violation of Health and Safety Code section 11379.6, subdivision (a); (2) possessing the components to manufacture methamphetamine, in violation of Health and Safety Code section 11383, former subdivision (c)(1); (3) possessing specified chemicals with the intent to manufacture methamphetamine, in violation of Health and Safety Code section 11383, former subdivision (g); and (4) possessing methamphetamine for sale, in violation of Health and Safety Code section 11378. Wilen alone was also charged with additional counts of possessing the components to manufacture methamphetamine, in violation of Health and Safety Code section 11383, former subdivision (c)(1), and with possession of “laboratory glassware or apparatus” with the intent to manufacture methamphetamine, in violation of Health and Safety Code section 11104.5.
The information also set out numerous enhancement allegations. The manufacturing count was accompanied by an allegation that, “pursuant to Health and Safety Code section 11379.8 (a)(1), . . . the substance in the above offense exceeded three gallons of liquid by volume and one pound of solid substance by weight.” It was further alleged, that Wilen had seven prior felony convictions for which he served a term in prison within the meaning of Penal Code section 667.5, subdivision (b); several of those convictions were also drug-related, and thus also within Health and Safety Code section 11370.2, subdivision (c).
In February 2006, Wilen moved to quash the search warrant and to suppress all evidence obtained in the ensuing search. The basis for the motion was certain statements made by Detective Ryan in his “Statement of Probable Cause” in the application for the warrant. Detective Ryan stated:
“Deputies conducted a parole search at 16711 Marsh Creek Road . . . . Nobody was at the location and entry was forced into the location as well as into a locked bedroom which was later believed to be the bedroom of someone named ‘Mike’ (by his name posted on the outside of the bedroom). [¶] . . . [¶] During the forced entry into the bedroom believed to be ‘Mike’s, syringes were seen in plain view. [¶] . . . [¶] It is my opinion . . . that the syringes seen during the search for persons in the bedroom believed to be ‘Mike’s are syringes that may be used to inject methamphetamine and other controlled substances.”
In his moving papers, Wilen argued that “There is absolutely no evidence . . . presented at a preliminary hearing or included in any report associated with this case, that indicates that a syringe . . . was ever found in Mr. Wilen’s bedroom. The inclusion of the statement that a syringe was seen in plain view in Mr. Wilen’s bedroom during the protective sweep was, thus, a misstatement of fact.” Wilen then quoted excerpts of Detective Ryan’s testimony at the preliminary examination, where he testified that he “believed” it was Deputy Goldberg who told him over the telephone that syringes were seen in plain view. Ryan admitted that no syringes were in fact found in Wilen’s bedroom. Asked if he could explain “how this discrepancy occurred,” Ryan answered: “I believe either one of the two occurred. Either she [Deputy Goldberg] was looking at meth pipes and said syringes because there were meth pipes found in the bedroom; or she told me meth pipes and I wrote down syringes. [¶] So I believe it was done in error on one of our two parts. And that’s only my opinion, and that’s an uneducated guess.”
Wilen argued that Ryan’s statement about the syringes was thus “made in reckless disregard for the truth.” Because that statement was “the only evidence” linking Wilen to “the criminal activity taking place at the residence,” it was material and “necessary to the magistrate’s finding of probable cause.” If that statement is disregarded, “the remainder of the affidavit does not establish probable cause that would have warranted searching Mr. Wilen’s bedroom.”
The prosecution opposed Wilen’s motion on procedural and substantive grounds. The motion was procedurally defective because Wilen had not supported it with “[a]ffidavits or sworn or otherwise reliable statements of witnesses” (quoting Franks, supra, 438 U.S. 154, 171). Substantively, the prosecution disputed that Ryan’s misstatement qualified as anything more than negligent, and thus did not require a full evidentiary hearing to traverse the entirety of Ryan’s “Statement of Probable Cause,” which was the affidavit made by Ryan in support of the application for the warrant. In any event, Ryan’s affidavit otherwise presented more than sufficient information from which the magistrate could have found probable cause to issue the warrant.
Wilen’s motion was heard on February 14, 2006. The court told Wilen’s counsel why the motion was being denied: “[T]he problem with the motion that you have made is for a Franks motion you have to submit either affidavit or sworn statement in addition to whatever points and authorities you submit. There is a substantial threshold burden you have to sustain before I can really even review the motion. . . . [¶] . . . [¶] You don’t have anything in support of your motion. You lay out your motion but there is no supporting affidavit, no witness statements, nothing. . . . You have to supplement your moving papers with additional information. [¶] It’s not here. . . . So the Franks motion is denied as being deficient procedurally at this time.”
The court explained that a Franks motion requires more than “boiler plate,” and it provided an illustration: “Your statement [that] the search warrant is not supported by statements at the preliminary hearing. The problem you have, the officer who applied [sic] [supplied] to another officer, you haven’t shown anything other than the fact that it’s inconsistent with what they found at the location. That first officer, Officer Goldberg, has to show they recklessly or falsely relayed the information to Officer Ryan. Nothing supporting that in this record other than allegation, and allegation isn’t sufficient to get over the Franks hurdle.”
On July 28, 2006, Wilen entered pleas of guilty to all of the charges, and admitted all of the enhancement allegations. He did so after the trial court had indicated, over the vehement objection of the prosecutor, that it would impose a sentence of no more than six years and eight months.
On September 15, 2006, the trial court sentenced Wilen to a total term of six years and eight months. Wilen thereafter filed a timely notice of appeal.
DISCUSSION
The California Supreme Court has recently explained that, 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. When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth; and, (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. The defendant must establish the statements are false or reckless by a preponderance of the evidence. [Citations.] Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] ‘Moreover, “there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[,] the defendant[’s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine . . . . The motion for an evidentiary hearing must be ‘accompanied by an offer of proof . . . [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished,’ or an explanation of their absence given.” ’ [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 456.) If a defendant’s motion for a Franks hearing is denied, that decision is reviewed de novo on appeal. (Id. at p. 457.)
Wilen contends the trial court “misread” Franks and set the evidentiary hurdle too high. He argues that “The sworn testimony of the police officers at the preliminary hearing, cited by page and line in Wilen’s motion, certainly constituted ‘sworn statements or otherwise reliable statements of witnesses.’ Thus, there was no need for an affidavit. Indeed, it is difficult to imagine whose affidavit Wilen was expected to obtain. The police officers presumably would not supply affidavits in support of Wilen’s suppression motion, averring that they deliberately or recklessly mislead the magistrate issuing the search warrant.” We do not find this reasoning persuasive.
The United States Supreme Court was very clear as to what a defendant must produce in order to overcome the presumption in favor of a judicially-issued warrant—“Affidavits or sworn or otherwise reliable statements should be furnished.” (Franks, supra, 438 U.S. 154, 171.) The court was equally clear that if the defendant could not produce these materials, “their absence [must be] satisfactorily explained.” (Ibid.) Wilen naturally emphasizes that Detective Ryan was acting on the basis of hearsay information from Deputy Goldberg, but there is no showing he made any effort to obtain any information from Goldberg that would impeach Ryan’s preliminary examination testimony. Wilen’s appellate counsel stresses that police officers may be understandably reluctant to produce information that would embarrass a colleague and benefit a criminal defendant. But Franks does not ignore such a reality: all the defendant has to do is explain that an effort was made to obtain voluntary cooperation from an officer but that the effort failed. This is how the absence of concrete proof would be “satisfactorily explained.” (Ibid.) One searches Wilen’s moving papers in vain for such an explanation. Thus, as a result of our own independent examination of the record, we reach the same conclusion as did the trial court.
Notwithstanding this conclusion, we cannot simply affirm the judgment. The prosecution’s disagreement with the sentences did not abate; on the contrary, the district attorney took the unusual step of appealing from the sentences on the ground that the court’s striking of a number of terms of imprisonment required by the enhancement allegations the defendants admitted did not comply with Penal Code section 1385 and was also beyond the court’s power. On that appeal, People v. Bonnetta et al., A115732, we have concluded that the trial court did not comply with section 1385, an omission that requires the matter of the sentences to be sent back to the trial court.
DISPOSITION
For the reasons given in People v. Bonnetta et al., A115732, filed on November 15, 2007, the sentence imposed on defendant Wilen is vacated, and the cause is remanded to the trial court. The judgment of conviction is affirmed in all other respects.
We concur: Haerle, Acting P.J., Lambden, J.