Opinion
F070841
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOHN VOLKERT, Defendant and Appellant.
Paul Kleven, 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, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF011065A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Raymonda Marquez, Michael G. Bush and Jose R. Benavides, Judges. Paul Kleven, 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, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
The Kern County District Attorney alleged in an April 1, 2014, information that appellant Patrick John Volkert be charged with the following five counts: possession of a controlled substance - methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 1), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) (count 2), unlawfully possessing ammunition (§ 30305, subd. (a)(1)) (count 3), the misdemeanor of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 4), and the misdemeanor of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364) (count 5).
All further statutory references shall be to the Penal Code unless otherwise stated.
Appellant moved to suppress evidence arising from the execution of a warrant to search his residence, moved to continue trial to retain counsel and moved for discovery of a deputy sheriff's personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Each motion was denied, and appellant pled no contest to count 2, felon in possession of a firearm, in exchange for a three-year probation term, 240 hours of community service and 120 days of custody in a work release program. Appellant appeals the denial of each motion. Specifically, appellant asserts that the search warrant was improperly granted due to procedural errors and a lack of probable cause, that the denial of the continuance motion violated his right to counsel and he seeks appellate review of the personnel records reviewed under Pitchess. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Traffic Stop and Arrest
On the afternoon of January 23, 2014, Kern County Sheriff's Deputy James Barnard was on patrol in Rosamond. After noticing the brake lights on appellant's vehicle were not operational and that an object was hanging from the rearview mirror, Barnard initiated a traffic stop. Barnard asked appellant if he had used any narcotics or alcohol. Appellant affirmatively responded that he drank two shots of vodka that morning. Barnard conducted a field sobriety test of appellant. Due to appellant's nervous behavior, eyelid and finger tremors and elevated pulse, Barnard believed appellant was under the influence of a controlled substance and placed him under arrest. Barnard administered a Miranda advisement, after which appellant admitted to using methamphetamine that morning.
There was no trial in this case due to appellant's plea of no contest. The facts are extracted from the preliminary hearing and motion to suppress transcripts.
Miranda v. Arizona (1966) 384 U.S. 436.
Warrant and Search of Residence
Barnard prepared an affidavit to support obtaining a search warrant. It was afterhours, so Barnard contacted the assigned on-call judge that night, Judge Benavides. Barnard prepared a written warrant and affidavit containing the relevant information supporting a search of appellant's residence and electronically sent the warrant application to the judge for review. Barnard then called Judge Benavides. The judge telephonically administered the oath to Barnard and proceeded to review and grant the warrant. Barnard and Judge Benavides provided conflicting accounts regarding how Barnard obtained possession of the signed warrant. At the motion to suppress hearing, Barnard testified that Deputy Bennett Driskill transported the signed warrant from the judge's house to Barnard. Driskill likewise testified that he transported the warrant from the judge to Barnard.
Barnard was unable to record his conversation with the judge because his telephonic recording equipment was not working. --------
Judge Benavides testified to his version of the events leading to the issuance of the warrant. Upon receiving a call, the judge administered the oath to Barnard over the phone. The judge then instructed Barnard to sign the warrant and e-mail it to him for review. The judge did not recall another sheriff's deputy picking up the warrant. Instead, he testified that he sent a copy of the warrant back to Barnard via e-mail and brought the original copy of the warrant to court the next day.
After obtaining the warrant, Barnard performed a search of appellant's residence. The search revealed a shotgun, shotgun ammunition, crystal methamphetamine, and drug paraphernalia. Specifically, appellant challenges the fact that the conversation between Barnard and the judge was not recorded, that Barnard did not sign the warrant after taking the oath, that there was evidence the warrant was physically delivered to Barnard from the judge by another officer, that there were time inconsistences with regard to the arrest and the time the warrant was obtained, and that certified copies of the warrant were not provided at the motion to suppress hearing. Appellant further contends that the warrant was not supported by probable cause, as it was based on unreliable information provided by an unnamed informant. We will address each contention in turn.
Standard of Review
An appellate court's review of a trial court's denial of a motion to suppress is governed by well-settled principles. (People v. Ayala (2000) 23 Cal.4th 225, 255.) The court defers to the factual findings if supported by substantial evidence. (People v. Brown (2015) 61 Cal.4th 968, 975; People v. Ayala, supra, at p. 255; People v. Leyba (1981) 29 Cal.3d 591, 596-597.) However, questions of law or mixed questions of fact and law that are predominantly legal are subject to independent review. (People v. Brown, supra, at p. 975.)
Methods of Obtaining Electronic and Telephonic Warrants
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (See Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2482].) This limitation upon searches applies to the states as well as to the federal government. (Mapp v. Ohio (1961) 367 U.S. 643, 654-655.) Similar restrictions upon the issuance of search warrants are likewise found in the California Constitution, article I, section 13, and in Penal Code sections 1525-1528.
Section 1526, subdivision (b), allows magistrates to issue a warrant on an oral statement under oath if certain requirements are met. With regard to telephonic warrants, the oath is made under penalty of perjury and recorded and transcribed. (Id., subd. (b)(1).) The transcribed statement is then deemed the affidavit in support of the application for the search warrant. (Ibid.) Alternatively, the affiant uses electronic means to transmit a written and signed affidavit to the magistrate. (Id., subd. (b)(2).) Upon receipt of the electronically submitted warrant application, the oath is administered during a telephonic conversation between the affiant and the magistrate. (Ibid.) The magistrate signs the warrant and transmits it to the affiant. The copy of the warrant received by the affiant is considered the original warrant. (Id., subd. (b)(2)(D).)
There is no written affidavit in support of telephonic warrants. However, the certification process employed by section 1526, subdivision (b), ensures an accurate transcription of the oral statement be made. (People v. Meza (1984) 162 Cal.App.3d 25, 35.) "Regarding the constitutional due process rights of [the] defendant, the certification requirement has a twofold purpose: to provide (1) [the] defendant with an accurate transcription of the oral statement so appropriate challenges to its legal sufficiency might be made and (2) the reviewing court with an accurate record of the factual information considered by the magistrate in making the probable cause determination, without which meaningful review would be foreclosed." (Ibid.)
The use of a telephonic search warrant is constitutional under California law. (People v. Peck (1974) 38 Cal.App.3d 993, 999-1000.) "Compliance with the requisites of the statute must be adhered to in order to insure adequate judicial supervision and control to preserve the constitutional guarantees [citation]." (People v. Sanchez (1982) 131 Cal.App.3d 323, 329 (Sanchez); see People v. Peck, supra, at p. 1000.) However, technical defects in the procedure do not invalidate the search. (Sanchez, supra, at p. 329; Sternberg v. Superior Court (1974) 41 Cal.App.3d 281, 291-292.) In Sanchez, the original search warrant could not be found, and the court found no prejudice resulted from relying on a duplicate copy of the warrant based on the other protections provided by the process set forth in the Penal Code. (Sanchez, supra, at pp. 330-331.)
Failure to Record Telephone Conversation or Sign Under Oath
Here, Barnard electronically sent the warrant application to the judge for review prior to the telephonic oath conversation. As the warrant was based on a written warrant application, there was no need to record and transcribe the telephone conversation in which the judge administered the oath. The reason for a written affidavit or a transcription of a telephonic conversation in lieu of a written affidavit is twofold. The record is required to allow a defendant to controvert the facts offered by the affiant to support the magistrate's probable cause determination. (People v. Fortune (1988) 197 Cal.App.3d 941, 952-953.) Further, an adequate record is required to allow the trial court or a reviewing court to review any challenge to the existence of probable cause proffered in support of the warrant application. (Ibid.) The written warrant and affidavit prepared by Barnard fulfilled the need to keep an accurate record of the proceeding. Section 1526, subdivision (b), does not require the telephonic oath conversation be recorded when an electronic copy of the warrant and affidavit are sent to the magistrate, as was done here. Appellant's contention that the prosecution erred by not recording the telephonic conversation in which Judge Benavides administered the oath is without merit.
Appellant next contends that Barnard was not under oath at the time he signed the warrant. Barnard did not recall whether he signed the warrant after the judge telephonically administered the oath. However, section 1526, subdivision (b)(2)(A), does not require the affiant to sign the warrant application after being administered the oath. Instead, the affiant is required to send a signed copy of the warrant application to the magistrate prior to the telephonic conversation in which the oath is administered. (Ibid.) Any failure on behalf of Barnard to wait until after Judge Benavides telephonically administered the oath to sign the warrant application was not error.
Method of Delivery of Signed Warrant
Appellant contends that section 1526 did not permit the method of delivery of the warrant from the judge to Barnard. As stated above, Barnard and Judge Benavides provided differing testimony regarding how the warrant was transported to appellant's residence to execute the search. Barnard testified that Driskill picked up the warrant from the judge and physically drove the warrant to Barnard, whereas the judge testified that he e-mailed a copy of the warrant back to Barnard and brought the original copy into court the next day. After providing testimony, the judge found the warrant to be valid, but did not make factual findings regarding the manner in which the warrant was transmitted to Barnard. However, the omission by the court to make findings on the issue is harmless, as either method of delivery was appropriate. (Cf. Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th 1, 75 ["When a trial court fails to make a finding on a material issue, the omission is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party."].)
If the warrant was physically transported to Barnard, appellant's argument is technically correct. Section 1526 allows for a written warrant to be submitted electronically to the judge, and upon telephonically administering the oath, sign and return the executed warrant by electronic means. (§ 1526, subd. (b)(2)(A)-(D).) The section does not contemplate returning the warrant by alternative means.
However, we find that the manual transportation of the warrant, rather than the use of electronic means, is a technical defect that does not invalidate the warrant. (Sanchez, supra, 131 Cal.App.3d at p. 329.) Section 1526 expands on the methods available to obtain a warrant. It does not appear that the Legislature contemplated that a warrant would be obtained using a mixture of electronic and traditional manual methods of delivery when drafting the section. But, appellant has failed to show why the technical failure to follow the procedure set forth in section 1526 to send the signed warrant back to the affiant by electronic means caused any prejudice. Even if delivered by hand, the magistrate reviewed the contents of the warrant and held a telephonic conversation with the affiant prior to executing the warrant. The technical defect of transporting the warrant by hand did not affect the substantive safeguards provided by California law to ensure that the warrant was properly reviewed and only issued upon an appropriate showing of probable cause.
Reliance on a Copy of the Warrant
Appellant next contends that the original warrant was lost, and that the prosecution should not have been able to rely on a copy of the warrant. At the motion to suppress hearing, the prosecution conceded that an original copy of the warrant could not be found at either branch of the Kern County Superior Court. Even if the original warrant was lost, if the protections of a lawful search remain then the defect in the warrant procedure is technical and suppression of the evidence obtained is not justified. (Sanchez, supra, 131 Cal.App.3d at pp. 330-331.) As stated above, Barnard and Judge Benavides provided differing testimony regarding how the warrant was transported. Regardless which procedure was used, the prosecution was unable to locate an original copy of the warrant filed with the court. However, a duplicate copy of the warrant was found and provided by the prosecution to the affiant. The duplicate copy of the warrant contained the signatures of Barnard and Judge Benavides. Handwriting on the warrant included "original warrant" on the top, "copy" on the side and "oath telephonically administered" at the end of the probable cause statement.
Beyond the statutory requirements of filing and possessing the original warrant, appellant does not question the contents of the duplicate copy of the warrant or whether the warrant is a true and correct copy of the warrant issued on January 23, 2014. Despite the failure to return the original copy of the warrant to the superior court, any error was only technical and does not entitle appellant to suppression of the evidence uncovered from the search. (See, e.g., People v. Fortune, supra, 197 Cal.App.3d at pp. 951-953 [finding the defect technical when recording equipment failed and a telephonic warrant was based on the affiant's recollection of what was discussed on the phone].) Appellant obtained and argued his suppression motion based on the copy of the warrant provided by the prosecution.
Failure to Present Warrant
Appellant, in his final argument regarding technical violations in obtaining the warrant, claims that the search was unlawful because the entry of appellant's residence occurred prior to Barnard's possession of the warrant. Judge Benavides wrote in the warrant that the telephonic oath conversation occurred and the warrant was signed at 5:30 p.m. The warrant was executed 43 minutes later, at 6:13 p.m. Appellant does not dispute the timing of the signing and execution of the warrant. Instead, he contends that if the warrant was transported by Driskill by car from Bakersfield to Rosamond, it would have taken an hour and one-half, and Barnard would not have physically received the warrant prior to the time it was executed at 6:13 p.m. Even assuming the facts alleged by appellant are correct, the claim fails.
The fact that the executing officer did not have a copy of the warrant and its incorporated documents on his person at the time of the search is not a basis to invalidate the search. "The United States Supreme Court has not interpreted the Fourth Amendment to the United States Constitution as requiring the officer executing the search warrant to display the warrant" at the time of the search. (People v. Calabrese (2002) 101 Cal.App.4th 79, 84.) "'Nothing in the language of the Constitution or in [the United States Supreme] Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the [Fourth Amendment]], search warrants also must include a specification of the precise manner in which they are to be executed.'" (United States v. Grubbs (2006) 547 U.S. 90, 98.) The failure of the officer to have a copy of the warrant on his person "does not implicate the seizure of the evidence described in the search warrant nor would it be vindicated by suppression of the evidence seized." (United States v. Hector (9th Cir. 2007) 474 F.3d 1150, 1155. "[T]he only legitimate interest" for handing the warrant to the property owner "'is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate.'" (Ibid.) Appellant concedes that the search warrant was executed after Judge Benavides signed the warrant. Accordingly, his contention that it was a warrantless search of the residence based on Barnard's failure to possess a physical copy of the warrant is without merit.
Probable Cause Based on Informant Testimony
Appellant contends that there was not sufficient probable cause for issuance of the warrant based on a tip from an unnamed informant. The warrant obtained by Barnard authorized a search of appellant's residence for methamphetamine, methamphetamine paraphernalia, currency associated with the sale of methamphetamine, and documentary evidence relating to the use and sale of methamphetamine. In Barnard's affidavit of probable cause in support of the warrant, he provided statements regarding his stop and arrest of appellant. Barnard described appellant's physical manifestations of methamphetamine drug use during the stop that led to him finding that appellant was under the influence of a controlled substance. Appellant provided statements to Barnard that he used methamphetamine at his residence earlier that day and that he had paraphernalia there, namely, a glass pipe for smoking methamphetamine.
Barnard also included informant testimony in the probable cause affidavit. An unnamed informant told another sheriff deputy that there was foot traffic to and from appellant's residence, and that the informant had personal knowledge of a friend using methamphetamine obtained from appellant.
A reviewing court must find the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing when determining whether probable cause supported the issuance of a warrant. (Illinois v. Gates (1983) 462 U.S. 213, 238-239 (Gates); People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft).) The magistrate makes a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Gates, supra, at p. 238; Kraft, supra, at pp. 1040-1041.) The magistrate's determination of probable cause is entitled to deferential review. (Gates, supra, at p. 236; Kraft, supra, at p. 1041.) Finally, the magistrate's determination shall be sustained as long as there was a substantial basis for concluding that a search would uncover evidence of wrongdoing. (Gates, supra, at p. 236.)
Appellant does not challenge the validity of the traffic stop, nor does he challenge whether his statements against interest regarding using and possessing methamphetamine and methamphetamine paraphernalia at his house were properly admitted. Instead, appellant focuses on how the factual information provided from the unnamed informant should not have been deemed reliable and a substantial basis for the search.
The United States Supreme Court has indicated that where an informant provides information about certain criminal activities but does not specify the basis for his knowledge, a finding of probable cause based on that information may be upheld if the informant is known to be reliable. (Gates, supra, 462 U.S. at p. 233.) There is no prohibition on the use of informant testimony; however, factors including an informant's veracity, reliability, and basis of knowledge are relevant to determining whether the information establishes probable cause to believe that contraband or evidence may be found. (Gates, supra, at p. 230; People v. Camarella (1991) 54 Cal.3d 592, 601 (Camarella).) Additionally, any deficiency in the quality of the informant's tip may be compensated for by a strong showing as to the other factors or by some other indicia of reliability. (Gates, supra, at p. 233; Camarella, supra, at p. 601.)
The court need not address the reliability of the informant tip to determine whether there was a substantial basis that contraband would be found at appellant's residence. Even assuming that the informant's tip lacked reliability, the issuance of the warrant was based on Barnard's firsthand observations that appellant was under the influence and appellant's statements that he used methamphetamine at his house earlier that day. Appellant specifically stated that he had a methamphetamine pipe in his residence. The information gathered from the stop, including appellant's statements against interest, provided sufficient probable cause to support the issuance of the search.
Alternatively, respondent argues that even if the warrant was unsupported by probable cause, Barnard reasonably relied on the warrant under the good faith exception to the warrant requirement. Under United States v. Leon (1984) 468 U.S. 897, 922, a police officer may rely in good faith on a warrant later found to be invalid. However, the exception does not apply where the warrant is "based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" (Id. at p. 923.) The court must ask "whether a reasonable and well-trained officer 'would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.'" (Camarella, supra, 54 Cal.3d at pp. 605-606.) In this case, based on the totality of the evidence from the stop and the unnamed informant, a reasonable officer would not have known that the affidavit failed to establish probable cause to support a search of appellant's residence for methamphetamine and methamphetamine paraphernalia.
Based on the evidence resulting from the arrest, there was probable cause supporting the issuance of the warrant. But, even if probable cause was lacking, the good faith exception would apply, and no error occurred in the issuance of the search warrant. Appellant's claim that the warrant lacks probable cause or is otherwise invalid is without merit.
Denial of Right to Counsel
Appellant, in his third claim, asserts that the trial court violated his federal right to counsel by denying his motion for a continuance brought a week before trial so that he could hire his own counsel. Respondent argues, and appellant acknowledges, that the issue is not cognizable on appeal based on his failure to obtain a certificate of probable cause under section 1237.5, subdivision (b).
Section 1237.5 authorizes the trial court to determine whether an appeal raises any nonfrivolous, cognizable issue to prevent the unnecessary expenditure of judicial resources from frivolous appeals arising from convictions on a plea of guilty. (People v. Arriaga (2014) 58 Cal.4th 950, 958.) Issues going to the validity of a plea require compliance with section 1237.5 and a certificate of probable cause. (People v. Arriaga, supra, at p. 958; People v. Brown (2010) 181 Cal.App.4th 356, 359.)
There are two exceptions to the requirement for a certificate of probable cause for an appeal after a plea of guilty or nolo contendere. (People v. Brown, supra, 181 Cal.App.4th at p. 360.) The first applies where the notice of the appeal is based on the denial of a motion to suppress evidence. (Ibid.) The second exception is where the defendant is not attempting to challenge the validity of his plea, but instead asserting that errors occurred during sentencing. (Ibid.) Here, appellant is challenging the denial of a continuance of trial to allow time to retain private counsel. He asserts that the deprivation of counsel of his choice requires reversal of his plea. As his claim goes to the validity of his plea, neither of the exceptions to the requirement of obtaining a certificate of probable cause apply. This claim is not reviewable on appeal due to appellant's failure to obtain a certificate of probable cause.
Review of Pitchess Material
During the course of discovery, appellant requested and was granted review of confidential personnel files relating to Barnard. Witness names, addresses and contact information was provided regarding one incident. Appellant requests we independently review the Pitchess hearing conducted by the trial court.
Pitchess motions are the well-settled mechanism by which defendants can screen law enforcement personnel files for evidence that may be relevant to their defense without compromising the officer's reasonable expectation of privacy in those records. (People v. Mooc (2001) 26 Cal.4th 1216, 1225-1227 (Mooc).) Subject to various restrictions not relevant here, a trial court must conduct an in camera review of potentially relevant personnel files if the defendant makes a showing of good cause for the discovery. (Id. at pp. 1226-1227.)
This process is effectuated by having a custodian of records collect all potentially relevant documents from identified personnel files and present them to the trial court. (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) The custodian "should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (Id. at p. 1229.)
The trial court must then make a record of what documents it has examined to permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) "If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Ibid.) These proceedings are then sealed. (Ibid.)
Upon appeal, we independently examine the record made by the trial court "to determine whether the trial court abused its discretion in denying a defendant's motion for disclosure of police personnel records." (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
We have reviewed the full set of transcripts, files, and statements relevant to this issue. The trial court complied with the required Pitchess procedures. A custodian of records was present and placed under oath. The custodian testified he found and provided responsive documents. The court independently reviewed the relevant personnel file, which had been provided. Upon review of the records, the trial court ordered that witness names, addresses and contact information be provided regarding one incident. The proceedings were stenographically recorded. (Mooc, supra, 26 Cal.4th at p. 1229.) Our independent review finds the trial court did not abuse its discretion in determining that discovery as to one incident be produced. Our independent review shows the remaining records in the personnel file were not related to false reports or dishonesty and were properly withheld from production.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.