Opinion
C076637
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PETERSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F00293)
A search by police led to the seizure of drugs, weapons, ammunition, and other items from defendant Michael Peterson. A complaint deemed an information charged defendant with various drug and weapons charges. Defendant filed multiple motions to quash the search warrant, which the court denied. Defendant withdrew his not guilty pleas and entered a negotiated plea of nolo contendere on one count. Sentenced to two years, defendant's sentence was deemed served based on time credits. Defendant appeals, arguing the court retained jurisdiction to hear the later motion to quash, the court had jurisdiction to modify its earlier order, and we should review the sealed affidavit to ascertain whether the trial court erred in refusing to disclose the identity of the informant and in denying defendant's motion to quash the search warrant. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2013 a complaint deemed an information charged defendant with count one, possession of heroin and methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a)); count two, possession of heroin (Health & Saf. Code, § 11350, subd. (a)); count three, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count four, possession of ammunition by a person prohibited from possessing a firearm (Pen. Code, § 30305, subd. (a)(1)); count five, felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)); count six, possession of a silencer (Pen. Code, § 33410); and an additional unnumbered count added during the preliminary hearing, a violation of Health and Safety Code section 11351, subdivision (a). The information also alleged defendant committed count one in violation of Health and Safety Code section 11370.1, subdivision (a) while released from custody on a primary offense. Defendant entered a plea of not guilty.
All further statutory references are to the Penal Code unless otherwise designated.
The trial court provided counsel with a redacted search warrant that masked the identity of the informant. The warrant was executed on January 10, 2013, in Sacramento. A confidential informant had advised the police department that an individual matching defendant's description was selling heroin from an address reported as 2366 Belcot Road, but the actual address was 2366 Cottage Way.
The house was at the corner of Cottage Way and Belcot Road and this created some confusion as to whether it had a Belcot Road or Cottage Way address; the Cottage Way address was correct.
Defendant had been previously arrested at that address on December 30, 2012, for possession of heroin and methamphetamine, in Sacramento County case No. 13F00025. Codefendant Cecilia Peralez was also connected to the Cottage Way address.
Pursuant to the warrant, officers seized various items to include psilocybin, methamphetamine, Vicodin pills, heroin, digital scales with narcotics residue, ammunition, a .44-caliber revolver, a silencer, a night-vision monocle, and a bulletproof vest.
In August 2013 defendant filed a motion to traverse and quash the search warrant and to suppress evidence under section 1538.5. The court denied the motion, finding: "[T]here is adequate probable cause contained in the entirety of the warrant that I have reviewed. There are portions that I'm not going to release, as I think that the basis for it not being released is justified under these circumstances. [¶]. . .[¶] There is information, that taken in its totality supports the issuance of the warrant. [¶] I will candidly say any judge reviewing this case in its entirety and the entire warrant that was submitted, I believe would have issued the warrant." The court also noted the discrepancy between the address on the warrant, 2366 Belcot Road, and the accurate address, 2366 Cottage Way: "In spite of that, I will call inaccuracy, there was sufficient probable cause to issue a warrant." Defendant's counsel later declared a conflict of interest and new counsel was appointed.
In April 2014 defendant's new counsel filed a renewed motion to traverse and quash the warrant and to suppress evidence under section 1538.5. The People opposed the motion, challenging defendant's right to bring a renewed motion under section 1538.5, subdivision (i). The court denied the second motion, finding it lacked jurisdiction. The court explained: "I have read the pleadings and some of the case law cited by Counsel, and it appears to me that the defense has not presented grounds -- and they're fairly narrow grounds -- that would allow this Court to have jurisdiction to hear the additional motion to suppress. And then I don't get to the traverse unless the motion to suppress is granted, so let's talk about that. [¶] So I think I lack jurisdiction, and the proper way to proceed is either for the defense to go through the extraordinary writ process or to file a motion at trial. [¶] . . . I do not have jurisdiction to hear it at this time."
Defendant withdrew his not guilty plea and entered a negotiated plea of nolo contendere on count one with a term of two years. His sentence was deemed served based on the calculation of time credits, and he was released on his own recognizance with orders to report to either parole or postrelease community service. Case No. 13F00025 and the remaining six counts in the present case, Sacramento County case No. 13F00293, were dismissed pursuant to the plea. Defendant filed a timely notice of appeal in case No. 13F00293.
DISCUSSION
I
Defendant argues the trial court retained jurisdiction to consider the second motion to suppress under section 1538.5, subdivision (i). However, defendant's argument pertains in large part to case No. 13F00025, which was dismissed as part of defendant's plea bargain in case No. 13F00293. Defendant did not file a notice of appeal in case No. 13F00025.
In a footnote, defendant acknowledges the lack of a notice of appeal but contends: "Should an issue arise regarding cognizability of any argument herein based on the absence of a notice of appeal in No. 13F00025, [defendant] requests the court deem the notice of appeal in No. 13F00293 to include an appeal in No. 13F00025. [Citations.]" Defendant also cites California Rules of Court, rule 8.304(a)(4), which provides the notice of appeal must be liberally construed.
Defendant fails to provide any other basis for us to include case No. 13F00025 in the current case on appeal. Although the People moved for consolidation of the two cases at the preliminary hearing, the court denied the motion. The court stated consolidation "would not be fair to Ms. Peralez to combine those two cases. They occurred at separate times. One appears to be -- it would be prejudicial to her, I believe, to have some of these other charges and evidence come before the jury." Defendant asserts, "The court denied the motion [to consolidate] because it would be unfair to Peralez, and not for any reason advanced by [defendant]." Why the court denied consolidation does not change the fact that the two cases were not consolidated and remained separate.
Defendant takes issue with whether the cases did remain separate, arguing that they were combined at various hearings, demonstrating "the reality that the two actions were inextricably intertwined." We disagree.
Defendant claims the trial court considered the motions to suppress in the two cases "at the same hearing." However, the trial court conducted two separate hearings on defendant's motions. In the morning, the court heard and denied the motion in case No. 13F00025. In the afternoon, the court heard and denied the motion in case No. 13F00293. In the latter, defendant challenged the search warrant and requested the court conduct an in camera review of the affidavit to determine whether information in the warrant was necessary to ensure the defense could properly challenge the probable cause supporting the warrant. In light of this background, we consider defendant's arguments without reference to case No. 13F00025.
II
"As a general rule, a defendant is allowed only one pretrial suppression motion under section 1538.5 in the superior court, and that court is without jurisdiction to hear a second motion. [Citations.] A second suppression motion may be brought at trial, only upon the narrow grounds that, at the initial motion made before trial, 'opportunity for [the new] motion did not exist or the defendant was not aware of the grounds for the motion . . . .' (§ 1538.5, subd. (h); [citations].)" (People v. Nelson (1981) 126 Cal.App.3d 978, 981, fn. omitted.) For example, "if there occurred an intervening change in the applicable law or the discovery of new evidence in support of suppression, the trial court could entertain a new motion based on such grounds." (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 611.) The single suppression hearing rule does not apply when the trial court applied an erroneous legal standard in its original ruling. (People v. Ramirez (1992) 6 Cal.App.4th 1583, 1590.) Nor does it apply when a conviction is reversed on grounds of ineffective assistance of counsel infecting the initial suppression hearing. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 200.)
None of these exceptions applies in the present case. On appeal, defendant argues the trial court erred because he allegedly obtained evidence that challenged investigating officer Darby Lannom's version of events in case No. 13F00025. However, the officer in question did not testify in the present case, case No. 13F00293.
In the present case, in the affidavit in support of the search warrant Detective Ryan Oliver stated he relied on information from Officer Lannom that defendant had been arrested for possession of heroin and methamphetamine on December 30, 2012, that defendant resided at 2366 Cottage Way, and that the residence was equipped with security cameras. The affidavit was supported by information from a confidential informant, who stated defendant was selling heroin. The trial court correctly determined it lacked jurisdiction to hear defendant's second motion to suppress pursuant to section 1538.5.
III
Defendant also argues the trial court had discretion to modify its earlier order pursuant to Code of Civil Procedure section 128, subdivision (a)(8). Under defendant's theory, the People's offer of proof in case No. 13F00025 was that Officer Lannom had confused the searchable probationer's address. Therefore, the court should have exercised its discretion to amend its prior order to "conform to law and justice."
Code of Civil Procedure section 128, subdivision (a)(8) provides, in part: "(a) Every court shall have the power to do all of the following: [¶] . . . [¶] (8) To amend and control its process and orders so as to make them conform to law and justice. An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement."
Again, defendant's argument is based on testimony in case No. 13F00025. That testimony is not at issue in the case before us and we find Code of Civil Procedure section 128, subdivision (a)(8) inapplicable.
IV
Finally, defendant requests that we review the sealed affidavit to ascertain whether the trial court erred by refusing to disclose the identity of the informant and denying the motion to quash the search warrant and to suppress the evidence seized in the January 10, 2013, search. The People join in the request.
In his first motion to suppress evidence and to quash and/or traverse the search warrant, defense counsel made a Hobbs motion, seeking review of the sealed search affidavit under People v. Luttenberger (1990) 50 Cal.3d 1. Such a motion requires the trial court to conduct an in camera hearing pursuant to Evidence Code section 915, subdivision (b). The court first determines whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It then determines whether the entirety of the affidavit or any major portion is properly sealed. (Hobbs, supra, 7 Cal.4th at p. 972.) The court possesses the discretion to call and question the affiant, the confidential informant, and any other witness deemed necessary. (Id. at p. 973.)
People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). --------
Following the in camera examinations, the trial court evaluates the motion to traverse: "If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing. Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made 'knowingly and intentionally, or with reckless disregard for the truth,' and (2) 'the allegedly false statement is necessary to the finding of probable cause. [Citation.]
"If the trial court determines that the materials and testimony before it do not support the defendant's charges of material misrepresentation, the court should simply report the conclusion to the defendant and enter an order denying the motion to traverse." (Hobbs, supra, 7 Cal.4th at p. 974.)
Here, the trial court followed this procedure and concluded it could not unseal any additional portion of the search warrant. As requested by the parties, we have reviewed the sealed affidavit under the procedure outlined in Hobbs. Based on our review, we find it not reasonably probable that defendant could have prevailed on a motion to traverse the search warrant. Therefore, the trial court properly denied defendant's motion to traverse the search warrant.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: HOCH, J. RENNER, J.