Opinion
C075573
02-21-2017
The PEOPLE, Plaintiff and Respondent, v. Percy Lamonte CAMEL, Defendant and Appellant.
Mark Farbman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts III through VII.
Mark Farbman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NICHOLSON, Acting P.J.Defendant Percy Lamonte Camel killed two men in separate criminal incidents. Convicted of two counts of first degree murder and other crimes and sentenced to two consecutive indeterminate terms of life without the possibility of parole and other terms, he appeals.
Defendant contends that the trial court erred by determining (1) he did not have standing to challenge a search of the trunk of a car parked on the front lawn of his residence and (2) his trial attorney violated his right to effective assistance of counsel by not proffering evidence of standing to the trial court in connection with the motion to suppress. Even assuming for the sake of argument that defendant had standing to challenge the search of the trunk of the car parked on his front lawn, the court's standing determination did not cause prejudice because the car's trunk was searched under authority of a search warrant. Defendant's ineffective assistance of counsel argument is without merit for the same reason—absence of prejudice.
Defendant also contends that the trial court erred by denying his motion to suppress evidence obtained by wiretap. Specifically, defendant asserts: (1) the court employed the wrong probable-cause test, (2) the court improperly sealed documents attached to the wiretap request, and (3) there was no probable cause supporting the wiretap authorization. We conclude: (1) the court employed the correct probable-cause test, (2) the court properly sealed the documents attached to the wiretap request, and (3) there was probable cause to support the wiretap authorization.
In the unpublished part of this opinion, we address defendant's remaining contentions on appeal and find that some of them require modification of the judgment. We therefore modify the judgment and affirm it as modified.
BACKGROUND
Defendant committed the crimes mainly in two separate incidents: the Skyline incident in December 2009, and the USA Gas incident in February 2010.
Skyline Incident
On December 1, 2009, Roberto Hernandez drove his car, with his friends Alejandro Salazar and Jorge Sanchez as passengers, toward Red Sea Market in Stockton. On the way, they saw defendant in his distinctive purple Oldsmobile (also referred to in the record at times as a purple Buick), driving methodically up and down streets in the neighborhood. Hernandez and his friends believed defendant was looking for them and, desiring to avoid a confrontation with defendant, Hernandez and his friends drove to Sheba Liquors instead. When they arrived, however, defendant was already there in the parking lot.Still in his Oldsmobile, defendant leaned out of the driver's window and yelled, "I'm going to kill you all." Hernandez drove out of the parking lot. While Hernandez drove, Sanchez fired a shot. Salazar did not know Sanchez was armed and was upset with him for firing. Salazar had known defendant for years. They played baseball and socialized together when they were younger, but their relationship had become confrontational, with defendant accusing Salazar of disrespecting him.
In the afternoon of the same day, possibly about 30 minutes after the confrontation at Sheba Liquors, Hernandez dropped off his car at his home and went with Salazar, Sanchez, and other friends to Skyline Drive to drink sodas and smoke marijuana, while hiding from defendant. As Hernandez and Salazar were standing on the sidewalk, more than nine shots were fired in rapid succession from behind bushes on a nearby street corner. The gunman was African-American, in his early twenties, with the same build and complexion as defendant, and he was wearing what appeared to be the same hooded sweatshirt defendant was wearing when Hernandez, Salazar, and Sanchez encountered him at Sheba Liquors. As soon as the shots ceased, a car was heard fleeing the scene at a high rate of speed.
Hernandez was shot in the pelvic and chest areas and bled to death. Salazar was shot in the left leg and left arm, which required surgery on his arm. He was in the hospital for two or three weeks.
Thirteen shell casings from rounds shot from a semiautomatic pistol were found where the gunman had been.
Salazar identified defendant as the gunman.
USA Gas Incident
During the evening of February 6, 2010, Francisco Bernardino, Raul Abundes, Jr., Vincente Cardenas, and other friends (including Jorge Sanchez, who was present during the Skyline incident) went together from Stockton to the Palladium Nightclub in Modesto. The same evening, defendant went to the Palladium Nightclub with Chris Padilla and others. At the nightclub, Cardenas punched Padilla.
After the nightclub closed, both groups returned to Stockton. Defendant went to his house to get a gun, and drove around with his friends, looking for Cardenas. Bernardino dropped Cardenas off at his home and went to the USA Gas station with Abundes. They eventually parked next to the gas station.
As they sat in the car around 4:00 a.m. on February 7, 2010, and while Abundes was showing Bernardino a photo of his grandfather who had recently passed away, two gunmen fired about 30 shots at them in rapid succession from behind the car. Bernardino was hit more than 15 times and died at the scene. Abundes was hit several times but survived.
Twenty-four casings from a .30-caliber carbine rifle were found closely clustered behind the car, as well as a cluster of eight nine-millimeter casings.
During the morning on the same day as the USA Gas shootings, defendant called Padilla and told him that he shot some friends of Cardenas. Defendant also told Padilla that he had committed the Skyline shooting. A male caller left a voicemail message on Cardenas's cell phone, saying, "Go pick up your boy at the gas station. I think he's dead. Ha ha ha ha."
Cell phone records showed that defendant's cell phone was in the area of both incidents when they occurred. And officers searching defendant's residence found a .30-caliber M1 carbine semiautomatic rifle in the trunk of a green Saturn on the front lawn. Testing established that the M1 rifle found at defendant's residence was used in the USA Gas shooting.
Defendant was convicted by jury and sentenced by the court, as follows:
Skyline Incident
• Count 1: first degree murder (Pen. Code, § 187, subd. (a) ) of Roberto Hernandez, with a multiple-murder special circumstance (§ 190.2, subd. (a)(3)); life without the possibility of parole.
Hereafter, citations to an unspecified code are to the Penal Code.
• True findings on count 1:
• Intentional and personal discharge of firearm causing death (§ 12022.53, subd. (d)); consecutive 25 years to life.
• Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
• Count 2: willful, deliberate, and premeditated attempted murder of Alejandro Salazar (§§ 664, 187, subd. (a) ); consecutive 15 years to life.
• True findings on count 2:
• Intentional and personal discharge of firearm causing great bodily injury (§ 12022.53, subd. (d)); concurrent 25 years to life.
• Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
• Count 3: Shooting at an inhabited dwelling (§ 246); concurrent seven years.
• True finding on count 3:
• Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
• Count 4: prohibited person in possession of a firearm (§ 12021, subd. (e)); consecutive three years.
USA Gas Incident
• Count 5: first degree murder (§ 187, subd. (a) ) of Francisco Bernardino, with a multiple-murder special circumstance (§ 190.2, subd. (a)(3)); life without the possibility of parole.
• True findings on count 5:
• Intentional and personal discharge of firearm causing death (§ 12022.53, subd. (d)); consecutive 25 years to life.
• Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
• Personal use of an assault weapon (§ 12022.5, subd. (b)); consecutive 10 years.
• Count 6: willful, deliberate, and premeditated attempted murder of Raul Abundes (§§ 664, 187, subd. (a) ); consecutive 15 years to life.
• True findings on count 6:
• Intentional and personal discharge of firearm causing great bodily injury (§ 12022.53, subd. (d)); concurrent 25 years to life.
• Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
• Personal use of an assault weapon (§ 12022.5, subd. (b)); concurrent 10 years.
• Count 7: shooting at an occupied motor vehicle (§ 246); concurrent seven years.
• True findings on count 7:
• Intentional and personal discharge of firearm causing great bodily injury or death (§ 12022.53, subd. (d)); concurrent 25 years to life.
• Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
• Personal use of an assault weapon (§ 12022.5, subd. (b)); 10 years stayed.
• Count 8: possession of an assault weapon (§ 12280, subd. (b)); three years stayed.
• Count 9: prohibited person in possession of a firearm (§ 12021, subd. (e)); three years stayed.
Additional Counts
• Count 10: possession of an assault weapon (§ 12280, subd. (b)); three years stayed.
• Count 11: prohibited person in possession of a firearm (§ 12021, subd. (e)); three years stayed.
Additional factual and procedural background is included in the Discussion as relevant to the issues raised.
DISCUSSION
I
Motion to Suppress
Defendant contends that his Fourth Amendment rights were violated by the search of a vehicle in the front yard of his residence, and, if his claim fails for lack of standing, as the trial court concluded, his Sixth Amendment right to counsel was violated by his attorney, who failed to present evidence of standing. Neither contention has merit.
A. Background
Before trial, on August 12, 2011, defendant filed a motion to suppress evidence obtained from the search of a green Saturn located in the front yard of his residence. The search was based on two search warrants issued with respect to defendant's residence.
The first warrant specifically described two other vehicles but also included authorization to search "any vehicles under the control of [the real property] or the occupants of the premises to be searched, at the time the warrant is to be served as established by DMV documents and records, possession of keys or actual use of the vehicles and/or statements of the witnesses."
During the search under the first warrant, the officers found the green Saturn. An officer asked defendant's mother who owned the vehicle, and the mother said it belonged to a friend named Yolanda, who had left the vehicle on her property. A records check revealed that a release of liability was issued to defendant's mother.
An officer began to search the green Saturn under authorization of the first warrant. He opened the trunk and found a rifle with a pistol grip handle. Upon making this discovery, the search of the green Saturn was suspended and officers sought and obtained a second warrant specifically authorizing a search of the green Saturn. The rifle found in the trunk of the green Saturn turned out to be the .30-caliber M1 carbine rifle used in the USA Gas incident.
In his motion to suppress, defendant argued: "There was never probable cause to justify a search of the green 1997 Saturn at issue, so the First Warrant was consequently overbroad and accordingly invalid as a basis for a search of that Saturn. The Second Warrant, issued without any further probable cause than its predecessor, is tainted by the fruit of the poisonous tree gained from the First Warrant, as are any observations of and seizures from the green 1997 Saturn made under its authority."
Relying on the affidavits filed by the Stockton Police Department in support of the issuance of the two search warrants, defendant argued at the hearing on his motion to suppress that he had standing—a reasonable expectation of privacy—as to the green Saturn parked in the yard of his residence. On October 7, 2011, the trial court denied the motion to suppress, finding that the affidavits did not support defendant's standing argument.
On January 13, 2012, defendant requested permission to renew his motion to suppress, claiming that evidence had been discovered that defendant owned the green Saturn. A witness said the green Saturn belonged to defendant, it had a blown engine or other problem, and the witness and defendant sat in the vehicle to smoke marijuana. The witness never saw defendant work on the vehicle. The trial court granted the request to renew the motion to suppress, but defendant later, on May 1, 2012, withdrew the renewed motion because he was unable to locate the witness.
On December 10, 2012, defendant again requested permission to renew his motion to suppress, and the trial court granted the request. Defendant presented evidence of a witness's statements that (1) the green Saturn was parked on the lawn in front of defendant's residence, (2) it had been sitting in the same spot for several months, (3) the witness never saw defendant driving the vehicle, (4) the witness did not know whether defendant kept his belongings in the vehicle, (5) the vehicle did not run, (6) the witness and defendant entered the vehicle to smoke marijuana, (7) the witness never saw defendant work on the vehicle, and (8) the witness never saw anyone else enter the vehicle. Opposing the motion to suppress, the prosecution submitted a statement by defendant denying ownership or any possessory interest in the vehicle. Having reconsidered the motion to suppress, the trial court again denied it, finding that there was no standing.
B. Analysis
Defendant asserts he presented sufficient evidence to establish standing to challenge the search of the green Saturn. In the alternative, he asserts his attorney violated his Sixth Amendment right to counsel by failing to submit available evidence of standing.
1. Standing
We need not determine whether the trial court erred with respect to the standing determination because, even assuming for the sake of argument defendant had standing to challenge the search of the green Saturn, defendant fails on appeal to establish prejudice in the trial court's determination that defendant did not have standing.
When a trial court errs with respect to a motion to suppress, we cannot reverse unless there is a miscarriage of justice. (Cal. Const., art. VI, § 13.) If the error was harmless beyond a reasonable doubt, there is no miscarriage of justice. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 ; People v. Tewksbury (1976) 15 Cal.3d 953, 972, 127 Cal.Rptr. 135, 544 P.2d 1335 [any error in denial of suppression motion analyzed under harmless-beyond-a-reasonable-doubt standard].)
In his appellate claim that the trial court's standing determination caused prejudice, defendant focuses on whether, without the evidence obtained from the green Saturn, including the rifle used in the USA Gas incident, it would have been more difficult to convict him. By focusing on that question, he neglects preliminary steps he must take to successfully establish prejudice. Specifically, he has failed to establish that, if the trial court had found standing, it would have necessarily found that his Fourth Amendment rights were violated, thus requiring suppression of evidence. Defendant is not entitled to assume that the motion to suppress would have been granted if the trial court found standing. We conclude that the motion to suppress would have been denied, even if the trial court had found standing, because the first warrant allowed the officers to search the green Saturn.
The first warrant issued with respect to defendant's residence allowed officers to search "any vehicles" on the property. That category included the green Saturn, which was on the front lawn. Therefore, the search of the green Saturn was done pursuant to a warrant.
Defendant notes in his opening brief that, in the trial court, he argued the first search warrant was overbroad to the extent the "any vehicles" language allowed a search of the green Saturn. However, he neither renews that argument in his opening brief nor cites authority for the proposition that the first warrant was overbroad to the extent the "any vehicles" language of the warrant allowed a search of the green Saturn. (See People v. Stanley (1995) 10 Cal.4th 764, 793, 42 Cal.Rptr.2d 543, 897 P.2d 481 [failure to cite authority forfeits appellate review of issue].) On its face, the first warrant allowed a search of the green Saturn because it was within the scope of the "any vehicles" language of the warrant.
Even in his points and authorities in support of his motion to suppress before trial, where defendant argued that the first warrant was overbroad, he provided no authority for that proposition. He argued, without authority, that nothing in the affidavit supporting the search warrant connected defendant to the green Saturn.
In any event, the first warrant was not overbroad as to the "any vehicles" provision. Whether a warrant is sufficiently particular is a question of law subject to independent review by an appellate court. (People v. Eubanks (2011) 53 Cal.4th 110, 133, 134 Cal.Rptr.3d 795, 266 P.3d 301.) In analyzing this question, we consider the purpose of the warrant, the nature of the items sought, and the totality of the circumstances surrounding the case. "A warrant that permits a search broad in scope may be appropriate under some circumstances, and the warrant's language must be read in context and with common sense. [Citation.]" (Id . at pp. 133-134, 134 Cal.Rptr.3d 795, 266 P.3d 301.)
Defendant was identified in the affidavit as the principal suspect in the crimes, and it was reasonable to believe he may have stashed evidence of his crimes in a vehicle on the premises other than the vehicles he had been seen driving. The same probable cause that connected defendant to the inside of the residence also connected him to the inoperative green Saturn on the front lawn. Thus, the first warrant was not overbroad in that it allowed the officers to search for evidence of the crimes in the green Saturn. The first warrant did not violate the Fourth Amendment, and the trial court would have properly denied his motion to suppress, even if it had found standing.
2. Effective Assistance of Counsel
In a video made by defendant, seized by law enforcement, provided to the defense, and used as evidence against defendant at trial, defendant briefly shows the green Saturn and refers to it as "my little Saturn." Defendant contends on appeal that his attorney's failure to provide this evidence in support of his standing to challenge the search of the green Saturn violated his right to counsel.
To prevail on his ineffective assistance claim, defendant must show (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (Strickland ).)
As to the first prong—deficient performance—a "strong presumption" exists that counsel acted professionally. (Strickland, supra , 466 U.S. at p. 689, 104 S.Ct. 2052.)
As for the second prong—prejudice—"[d]efendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694, 104 S.Ct. 2052.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id . at p. 697, 104 S.Ct. 2052.)
This is a case in which it is easy to dispose of the ineffectiveness claim based on the absence of prejudice. As discussed above, even if the trial court had found that defendant had standing to challenge the search of the green Saturn, it would have properly denied defendant's motion to suppress because the green Saturn was searched lawfully under the first warrant. Since there was no probability that counsel's failure to present the video evidence in connection with the motion to suppress would have produced a different result for defendant, his claim that his attorney violated his right to counsel is without merit.
II
Wiretap Application
In the trial court, defendant moved to suppress evidence obtained by wiretap, and the court denied the motion. On appeal, defendant contends: (1) the court employed the wrong test for probable cause in considering the motion to suppress, (2) the documents attached to the wiretap request were improperly sealed, and (3) there was no probable cause supporting the wiretap authorization. As noted above, we conclude: (1) the court employed the correct test for probable cause, (2) the documents attached to the wiretap request were properly sealed, and (3) there was probable cause to support the wiretap authorization.
A defendant who believes that evidence was "obtained in violation of the Fourth Amendment of the United States Constitution or of [California's Wiretap Act ]" may move to suppress its use at trial. (§ 629.72.) Such a motion is "subject to review in accordance with the procedures set forth in Section 1538.5." (§ 629.72; People v. Jackson (2005) 129 Cal.App.4th 129, 145-146, 28 Cal.Rptr.3d 136 (Jackson ).)
We refer to the Presley-Felando-Eaves Wiretap Act of 1988 (§ 629.50 et seq.) as the Wiretap Act.
Under the current version of the Wiretap Act, "the designated judge may authorize a wiretap if [1] there is probable cause to believe that an individual has committed, is committing, or is about to commit one or more of the listed crimes (§ 629.52, subd. (a)); [2] there is probable cause to believe that communications concerning the illegal activities will be obtained through that interception (§ 629.52, subd. (b)); [3] there is probable cause to believe that the communications device will be used by the person whose communications are to be intercepted (§ 629.52, subd. (c)); and [4] ‘[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous' (§ 629.52, subd. (d))." (People v. Leon (2007) 40 Cal.4th 376, 384, 53 Cal.Rptr.3d 524, 150 P.3d 207 (Leon ).)
"The magistrate's determination of probable cause is entitled to deferential review. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1041, 99 Cal.Rptr.2d 1, 5 P.3d 68.)
"The analysis of a [wiretap] suppression motion focuses on violations of the statutory procedures and not on constitutional violations, because while it is possible to violate a core principle of the statute without violating the Fourth Amendment it would not seem possible to violate the Fourth Amendment without also violating a core statutory principle." (Jackson, supra, 129 Cal.App.4th at p. 149, 28 Cal.Rptr.3d 136.) Therefore, the first question to be answered in analyzing a motion to suppress wiretap evidence is whether the defendant established a violation of the Wiretap Act. If the defendant did not establish a violation of the Wiretap Act, there is no constitutional violation and no suppression. (Ibid . )A. Background
During the investigation of defendant's crimes, the district attorney's office filed an application for a wiretap authorization. The application asserted that: (1) defendant committed murder and other crimes; (2) a wiretap of his cell phone would yield evidence of the crimes; (3) the cell phone was commonly used by defendant; and (4) normal investigative techniques were ineffective or too dangerous.
In support of the wiretap application, the district attorney's office filed an affidavit of Detective Kathryn Nance of the Stockton Police Department. The affidavit described defendant and identified his cell phone. It also set forth facts relating to nine incidents that Detective Nance asserted were support for the necessary probable cause determinations.
In Incident One, someone pulled up in a black and gray Lexus next to Roberto Hernandez and shot at him. Hernandez was not struck, but his car was. He knew who the gunman was but would not identify the gunman to the officer who spoke to him.
In Incident Two, someone shot Roberto Hernandez and Alejandro Salazar. Hernandez died of his injuries. Salazar told the officer that he believed defendant was the gunman because there had been problems between Hernandez and defendant. Salazar had heard that defendant was responsible for the shooting in Incident One. Defendant, in a purple Buick, had been following Hernandez and Salazar earlier that day. Salazar identified a photo of defendant. Jose Cordova was present during the shooting but did not see the gunman. Hernandez had told him earlier that he had some problems with some "black people." David Jimenez saw the shooting and saw a person with dark skin, wearing a hoodie, in an area where shell casings were later found. Jorge Sanchez said he had seen defendant in a purple Buick and had heard he also drove a Lexus. Sanchez saw the shooting and said that an "Asian guy and a black guy were shooting from the bushes." Sanchez did not know defendant but heard that defendant was the one who shot at Hernandez. A police detective questioned defendant about the shooting. Defendant told the detective he had a gray Lexus and a purple Buick. Defendant gave the detective his cell phone number, and the detective later called defendant and talked to him at that number.In Incident Three, someone in a group of men on foot shot at a passing car, killing one of its occupants. Defendant's Lexus was found in the area, but defendant did not appear to claim his car.
In Incident Four, an anonymous caller said he saw defendant in a purple car, along with other Black males, get into an argument with Hispanic males in a white car. Eventually, gunfire was exchanged. The caller was upset that defendant had not been arrested for killing Hernandez, and the caller reported that defendant had an AK47-type rifle. An independent report verified that there had been gunfire in the area at the time reported by the anonymous caller.
In Incident Five, an anonymous caller said that several Black and Hispanic males were inside a vacant house with AK47 rifles. When officers arrived at the vacant house, someone peeked out a side door and immediately went back in. Several Black and Hispanic males ran out of the house, escaping through backyards. The officers found two rifles inside the house. A confidential attachment to the affidavit in support of the wiretap request related to this incident.
In Incident Six, a Black male shot at a group of Hispanic males, hitting three of them. When shown a photo lineup including defendant, one of the victims said he thought that defendant looked like the gunman.
In Incident Seven, a Black male and another person shot at two victims as they sat in their car near the USA Gas station. Both victims were injured, and one of them died. Earlier that evening, defendant's cousin Maurice had been in an altercation with friends of the victims at a nightclub in Modesto. Several anonymous callers reported to officers that defendant told them that he was one of the gunmen involved in the USA Gas incident and was the gunman involved in the death of Roberto Hernandez, and the deceased victim's father also heard that his son had been killed by defendant.
In Incident Eight, a detective drove to defendant's home and watched while defendant answered a phone call from another detective. They did this to verify that the phone was in defendant's possession.
Incident Nine was detailed in a confidential attachment because it involved information from a confidential informant who had been reliable in giving information to the Stockton Police Department in the past. We need not give the details of this confidential attachment.
The incidents all took place from October 2009 to February 2010.
Based on the incidents summarized in the application for wiretap authorization, Detective Nance expressed the belief that "[defendant] is responsible and involved in the aforementioned cases. He is closely tied with all of the people described above and has been named as being involved by Confidential Reliable Informants, anonymous callers and victims of the above-described crimes. Based on the information obtained up to this point in the investigation, your affiant believes that he was not acting alone while committing the crimes. At this point in the investigation, the other people involved have not been identified or located. It is believed that [defendant] is in contact with these [co]conspirators. It is believed that [defendant] will have further communications about the prior crimes and other shootings being planned and the intended victims."
Detective Nance also gave facts concerning the Stockton Police Department's use of available investigative approaches and the necessity for using a wiretap to obtain further evidence. We need not provide those details here.The judge authorized the wiretap and ordered that the application and court order be sealed.
Before trial, defendant asked the court to unseal the attachments to Detective Nance's affidavit in support of the wiretap request. Defendant also moved to suppress evidence obtained as a result of the wiretap.
The trial court denied the motion to unseal the attachments and denied the motion to suppress evidence obtained as a result of the wiretap, finding, under the totality of the circumstances, there was probable cause to issue the wiretap authorization.
B. Analysis
1. Probable-cause Test
Defendant claims that the trial court erred by testing the reliability of the affidavits filed in support of the wiretapping order using a totality-of-the-circumstances test rather than employing a standard that requires particularized corroboration of informant tips, a test known as the Aguilar - Spinelli test (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (Aguilar ); Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (Spinelli )). Defendant claims that, although the United States Supreme Court discarded the Aguilar - Spinelli test in favor of a totality-of-the-circumstances test in Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (Gates ), affidavits in support of wiretap authorizations in California must be tested using the Aguilar - Spinelli test because (1) the Wiretap Act was enacted after Proposition 8's truth-in-evidence provision was added to the California Constitution and (2) the Wiretap Act was passed by at least a two-thirds vote in each houses of the Legislature, thus excepting it from the truth-in-evidence provision. The contention is without merit because, even though the wiretap statute was adopted by a two-thirds vote of each house of the Legislature after Proposition 8 was passed, there is no indication that the Legislature intended to adopt the Aguilar - Spinelli test. In other words, the Legislature could have, but did not, adopt the Aguilar - Spinelli test for wiretap probable-cause determinations.
In the 1960's, the United States Supreme Court formulated a test to determine whether allegations of an informant, supplied to the magistrate by hearsay, are sufficient to establish probable cause for a warrant (in general, and not necessarily with respect to a wiretap authorization). This Aguilar - Spinelli test required that the affidavit in support of the warrant (1) allege the informant's statement in factual, rather than conclusionary, language and establish the informant's personal knowledge and (2) contain sufficient underlying factual information reasonably supporting the informant's credibility and the information's reliability. (Aguilar, supra, 378 U.S. 108, 84 S.Ct. 1509 ; Spinelli, supra, 393 U.S. 410, 89 S.Ct. 584 ; see also People v. Smith (1976) 17 Cal.3d 845, 850, 132 Cal.Rptr. 397, 553 P.2d 557.)
The California Supreme Court used the Aguilar - Spinelli test, as mandated by the binding United States Supreme Court precedents of Aguilar and Spinelli , to review California probable-cause determinations. (See People v. Smith, supra, 17 Cal.3d at p. 850, 132 Cal.Rptr. 397, 553 P.2d 557.) According to the California Supreme Court, the Aguilar - Spinelli test was " ‘a convenient shorthand articulation of previously established principles of California law in the area of hearsay affidavits.’ [Citation.]" (People v. Belmontes (1988) 45 Cal.3d 744, 768, fn. 3, 248 Cal.Rptr. 126, 755 P.2d 310 (Belmontes ), overruled on other grounds in People v. Cortez (2016) 63 Cal.4th 101, 118, 201 Cal.Rptr.3d 846, 369 P.3d 521, and People v. Doolin (2009) 45 Cal.4th 390, 421, 87 Cal.Rptr.3d 209, 198 P.3d 11.)
In Gates , decided in 1983, the United States Supreme Court "abandon [ed]" the two-pronged Aguilar - Spinelli test for determining probable cause and in its place adopted a "totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations." (Gates, supra, 462 U.S. at pp. 233, 238, 103 S.Ct. 2317.) The court described the new test: "The task of the issuing magistrate is simply to make a practical, common-sense 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. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... [concluding]’ that probable cause existed. [Citation.]" (Id. at pp. 238-239, 103 S.Ct. 2317.) The Gates court reasoned that the totality-of-the-circumstances test is a "practical, nontechnical conception." (Id . at p. 231, 103 S.Ct. 2317.) Therefore, the court concluded that the "rigid" "two-pronged [Aguilar - Spinelli ] test" was not suitable for testing probable cause. (Gates, supra, 462 U.S. at pp. 230-231 & fn. 6, 103 S.Ct. 2317.)Before 1982, California courts imposed their own rules and tests on the admissibility and exclusion of evidence obtained by search and seizure. Many of these rules and tests were based on independent state grounds more restrictive, as to admission of evidence, than was required by the United States Constitution, as interpreted by the United States Supreme Court. (See, e.g., People v. Brisendine (1975) 13 Cal.3d 528, 548-552, 119 Cal.Rptr. 315, 531 P.2d 1099 (Brisendine ), abrogated by Prop. 8 [independent state grounds].)
In 1982, California voters passed Proposition 8, eliminating independent state grounds as a means for exclusion of evidence. The truth-in-evidence provision of Proposition 8 prohibited exclusion of relevant evidence unless the United States Constitution requires exclusion. As an exception, Proposition 8 allowed exclusion of relevant evidence admissible under the United States Constitution only if a subsequent statute, passed by a two-thirds vote of each house of the Legislature, provided for exclusion. (Cal. Const., art. I, § 28, subd. (f)(2).) "Proposition 8 ... eliminate[d] a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled." (In re Lance W. (1985) 37 Cal.3d 873, 886-887, 210 Cal.Rptr. 631, 694 P.2d 744, italics omitted.) The California Supreme Court concluded that " Brisendine and other state-law-based search-and-seizure cases were superseded by the enactment of Proposition 8. (See Cal. Const, art. I, § 28, subd. [ (f)(2) ] [right to truth-in-evidence provision]; In re Lance W. [, supra ,] 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744] [ (Lance W. ) ] [upholding same].)" (People v. Monge (1997) 16 Cal.4th 826, 873, fn. 4, 66 Cal.Rptr.2d 853, 941 P.2d 1121.)
"Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding...." (Cal. Const., art. I, § 28, subd. (f)(2).)
After the United States Supreme Court decided Gates in 1983, Proposition 8 had the effect of prohibiting California courts from using the two-pronged Aguilar - Spinelli probable-cause test because use of that test could result in exclusion of evidence that would be admissible under the Gates totality-of-the-circumstances test. As California courts have recognized since Gates was decided, the truth-in-evidence provision requires that the Gates totality-of-the-circumstances test must be applied in California to determine probable cause for crimes committed after enactment of Proposition 8, not the more rigid Aguilar - Spinelli test abandoned by the United States Supreme Court. (See People v. Love (1985) 168 Cal.App.3d 104, 107-108, 214 Cal.Rptr. 483 [applying Gates ]; People v. Medina (1985) 165 Cal.App.3d 11, 16-18, 211 Cal.Rptr. 216 [same]; see also Belmontes, supra, 45 Cal.3d at p. 768, fn. 3, 248 Cal.Rptr. 126, 755 P.2d 310 [applying Aguilar - Spinelli because crime committed before Prop. 8]; People v. Kershaw (1983) 147 Cal.App.3d 750, 754, fn. 2, 195 Cal.Rptr. 311 [same].)
Six years after Proposition 8 passed, the Legislature adopted the Wiretap Act and later amended it in 1995, as relevant here. (Stats. 1988, ch. 111, § 2, p. 450; Stats. 1995, ch. 971, § 10, p. 7395.) This act "authorized specified law enforcement officials to apply for a court order to intercept wire communications, but only where there was probable cause to believe the target was involved in [specified crimes]." (Leon, supra, 40 Cal.4th at p. 383, 53 Cal.Rptr.3d 524, 150 P.3d 207.) So the Wiretap Act is a post-Proposition 8 statute passed by a two-thirds vote of each house of the Legislature. "By its terms the truth-in-evidence clause [of Proposition 8] does not apply to a statute ‘hereafter enacted by a two-thirds vote of the membership in each house of the Legislature.’ Section 629.72 [providing for exclusion of evidence] was enacted in 1995, 13 years after the adoption of the truth-in-evidence clause. At the time of its enactment there were 40 members of the Senate. The bill passed the Senate by a vote of 28 to two (92 percent). There were 80 members of the Assembly. The bill passed by a vote of 62 to five (77.5 percent). Thus, suppression of evidence under section 629.72 is not prohibited by the truth-in-evidence clause of the California Constitution." (Jackson, supra, 129 Cal.App.4th at pp. 152-153, 28 Cal.Rptr.3d 136, fns. omitted.) We therefore look to the terms of the Wiretap Act to determine what test to apply in evaluating whether evidence obtained by wiretap must be suppressed.
Matters of statutory interpretation are questions of law subject to de novo review. (People v. Simmons (2012) 210 Cal.App.4th 778, 790, 148 Cal.Rptr.3d 554.) When we construe a statute, we seek to determine and give effect to what the Legislature intended. And the most reliable indicator of what the Legislature intended is found in the words used. (People v. King (2006) 38 Cal.4th 617, 622, 42 Cal.Rptr.3d 743, 133 P.3d 636.)
The Wiretap Act allows a defendant to move to suppress evidence obtained by wiretap "only on the basis that the contents or evidence were obtained in violation of the Fourth Amendment of the United States Constitution or of this chapter." (§ 629.72.) Notably, this provision does not provide for suppression of evidence if it is obtained in violation of the California Constitution. The omission of other reasons for exclusion is evidence of the Legislature's intent to limit exclusion to violations of (1) the United States Constitution, which uses the Gates totality-of-the-circumstances test, and (2) violations of the Wiretap Act. However, defendant argues that the language includes exclusion of evidence obtained in violation of the California Constitution, invoking the Aguilar - Spinelli test, because, in his words, "[t]he probable cause requirement of the statutory scheme flows from ... the California Constitution and thus plays a central role in the wiretap statute and cannot be satisfied by other means." (Fn. omitted.) This argument, though creative, is unconvincing because nothing in the Wiretap Act evinces a legislative intent to adopt the abandoned Aguilar - Spinelli test as an independent state ground for exclusion of evidence.
In attempting to establish that the Legislature meant to adopt the Aguilar - Spinelli test, defendant focuses on section 629.50, which requires the judge to make probable-cause determinations when considering whether to authorize a wiretap. The statute does not designate what probable-cause test to use. According to defendant, this failure to designate a probable-cause test necessarily means that the Aguilar - Spinelli test must be used because it is California's probable-cause test, as seen in the cases in which the crimes were committed before Proposition 8 was passed. This argument, however, contradicts the Legislature's express limitation of grounds for exclusion to violations of the Fourth Amendment and of the Wiretap Act. (§ 629.72.) Section 629.50 does not designate the test to be used in the probable-cause determination and does not evince a legislative intent to exclude evidence when a violation is determined using the Aguilar - Spinelli test. More likely, the Legislature, by not designating a test or including reference to the California Constitution, intended the courts to use the same test used in all other probable-cause determinations in California—the Gates totality-of-the-circumstances test. (See People v. Love, supra, 168 Cal.App.3d at pp. 107-108, 214 Cal.Rptr. 483 [applying Gates ]; see also Lance W., supra, 37 Cal.3d at p. 896, 210 Cal.Rptr. 631, 694 P.2d 744 [Legislature did not intend to abrogate truth-in-evidence provision by reenactment of § 1538.5].).
For example, section 629.50 requires the court to determine whether probable cause supports a belief that "additional communications of the same type will occur thereafter" and, in the case of modification of a wiretap authorization, "the person or persons identified in the original order have commenced to use a facility or device that is not subject to the original order." (Subd. (a)(5)&(8).)
If the Legislature, when enacting the Wiretap Act, had intended to adopt the Aguilar - Spinelli test for determining probable cause and deciding whether to exclude evidence obtained by wiretap, it could have done so expressly. It did not. Instead, it expressly authorized exclusion of evidence only for violation of the Fourth Amendment (which invokes the Gates totality-of-the-circumstances test) or a violation of the Wiretap Act, itself. This inclusion of two bases for suppression and the omission of reference to the California Constitution or a violation of rights determined using the Aguilar - Spinelli test is compelling evidence the Legislature did not intend to exclude evidence as a result of the application of the Aguilar - Spinelli test. (People v. Superior Court (Ramirez) (1999) 70 Cal.App.4th 1384, 1391, 83 Cal.Rptr.2d 402 [presumption that omission in statute is intentional].)Finally, the Legislature intended the Wiretap Act to conform to federal law, as reflected in title III of the Omnibus Crime Control and Safe Streets Act of 1968. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1196, 105 Cal.Rptr.2d 187.) Exclusion under federal law is necessary only for violation of the Fourth Amendment or of the federal wiretap statute, not for any California-specific reason.
Nothing in the Wiretap Act or its history convinces us the Legislature intended to adopt the Aguilar - Spinelli test for determining probable cause in support of wiretap authorization. Therefore, the trial court correctly applied the Gates totality-of-the-circumstances test.
2. Sealing of Documents
On appeal, defendant asks us to review the sealed record of the in camera proceedings, held in accordance with People v. Hobbs (1994) 7 Cal.4th 948, 30 Cal.Rptr.2d 651, 873 P.2d 1246 (Hobbs ). Having reviewed the sealed record, we conclude that the court fully complied with Hobbs and correctly ordered that the two attachments to Detective Nance's affidavit to be sealed.
A defendant may move to suppress evidence obtained as the result of a search warrant on the ground there was no probable cause for the issuance of the warrant. (§ 1538.5, subd. (a)(1)(B)(iii).) Under Hobbs , "[o]n a properly noticed motion by the defense seeking to quash or traverse [a] search warrant" where any part of the search warrant affidavit has been sealed, "the lower court should conduct an in camera hearing.... It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Hobbs, supra , 7 Cal.4th at p. 972, 30 Cal.Rptr.2d 651, 873 P.2d 1246, fn. omitted.)
We independently review the court's decision to seal a portion of the search warrant affidavit. (See People v. Martinez (2005) 132 Cal.App.4th 233, 241-242, 33 Cal.Rptr.3d 328.) Based upon our review of the transcripts of the in camera proceedings and the attachments to Detective Nance's affidavit, we conclude that the court did not err in refusing to unseal the entire search warrant affidavit or in determining which portions had to remain under seal in order to maintain the confidentiality of confidential informants.
3. Wiretap Authorization
Defendant contends that evidence obtained by wiretap should have been suppressed because unsealed parts of Detective Nance's affidavit did not support the necessary probable-cause determinations connecting defendant to the crimes. In making this contention, defendant applies the two-pronged Aguilar - Spinelli test, attacking the reliability and credibility of the affiant. However, as we established above, the Aguilar - Spinelli test does not apply to a motion to suppress evidence obtained by wiretap. As a result, defendant's contention that Detective Nance's affidavit did not provide sufficient reliable and credible evidence to support the necessary probable-cause determination applies the wrong test and is therefore without merit. Defendant's attack on the wiretap authorization could succeed on appeal only if he were to establish that the trial court erred under the totality-of-the-circumstances test. He makes no attempt to do that, so he fails to establish that there was insufficient evidence to support the necessary probable cause determinations in authorizing a wiretap. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573, 43 Cal.Rptr.3d 741 [appellant bears burden of affirmatively establishing error].) In any event, Detective Nance's affidavit, including the sealed parts, recounted several sources identifying defendant's probable involvement in the murders and the need for a wiretap to develop the case against him and to identify any others involved in the crimes.III–VII
See footnote *, ante.
DISPOSITION
As to count 5 and 6, the sentence is modified to stay the terms imposed under section 12022.5, subdivision (b), pursuant to section 12022.53, subdivision (f).
As to counts 2 and 6, the term imposed for each attempted deliberate and premeditated murder, exclusive of enhancements, is modified to life with the possibility of parole. (§§ 664, subd. (a) ; 3046, subd. (a).)
As to counts 10 and 11, each conviction is struck, acquittal is entered for each count, and the terms imposed for each count is struck.
As modified, the judgment is affirmed.The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to send the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur:
MURRAY, J.
RENNER, J.