Opinion
C088033
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DONALD LEROY GOMEZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF-2011-0872)
This case returns to us for a second time on appeal. The main issue before us at present time is whether probable cause for the search warrant issued in this case was tainted by information obtained from concededly illegal wiretaps. The trial court found that information from informants alone supported probable cause for the search warrant and it denied defendant's suppression motion on remand. We conclude substantial evidence supports the trial court's findings in that regard, as well as its denial of defendant Donald Leroy Gomez's motion to suppress. Consequently, we affirm the judgment but modify it to strike two enhancements that are no longer valid due to a subsequent change in the law, as we explain. We remand for resentencing.
BACKGROUND
Defendant was found guilty by jury of multiple drug crimes, and the trial court sustained enhancements for two prior drug convictions and sentenced him to a term of 10 years eight months in prison. Defendant appealed and we conditionally reversed the judgment with directions to hold a new hearing on the motion to suppress. (People v. Gomez (May 23, 2016, C077429) [nonpub. opn.] slip opn. at p. 12 (Gomez).) The trial court again denied the suppression motion on remand. Defendant appeals.
The Search Warrant
We take the facts of defendant's crimes and our summary of the search warrant from our opinion in the prior appeal.
"The Crimes
"In February 2011, a search warrant was issued for defendant, his residence, and his cars, based on an affidavit stating facts from unidentified confidential informants, a portion of which was and remains sealed. In the search of defendant's car, the police found a stun gun, a bag of marijuana, and an empty hidden compartment in the car. Inside defendant's apartment, they found multiple baggies of marijuana, two digital scales, a methamphetamine pipe hidden inside a Pringles can with a false bottom, a syringe inside a hairspray can with a false compartment, several other items with false compartments, and a police scanner. Defendant had $402 in cash in his pocket and two bags of methamphetamine hidden in his underwear.
"The Search Warrant
"The statement of probable cause supporting the search warrant was prepared by Jonathan Updegraff, an investigator with the Yolo County District Attorney's Office, at the request of Yolo Narcotic Enforcement Team (YONET) Agent LeFlore. Updegraff stated as follows:
"In May 2009, YONET agents were conducting surveillance on Jessica Reyes, a suspected methamphetamine dealer, and observed her leave a motel room and get into a truck driven by defendant. Soon thereafter, YONET agents found evidence of drug sales in Reyes's hotel room. Between May 2009 and January 2010, YONET received two anonymous tips that defendant was selling methamphetamine.
"In January 2010, a YONET confidential informant purchased about seven grams of methamphetamine from Edward Tulysewski. While investigating Tulysewski, YONET learned from another law enforcement agency of a large methamphetamine distribution by Tulysewski and defendant. Further details of this distribution were sealed in attachment A to the statement of probable cause (attachment A). YONET eventually arrested Tulysewski in December 2010 for possession of methamphetamine for sale.
"In December 2010, YONET agents arrested for possession for sale of methamphetamine an individual who became a confidential informant known as "C." In hopes of consideration in C's own case, C informed YONET agents that defendant had the nickname 'Go Go' and was a rival methamphetamine dealer, the biggest in Yolo County.
"In January and February 2011, three other confidential informants known as 'X,' 'B,' and 'Y' separately told YONET agents that defendant was a methamphetamine dealer. X provided details of defendant's activities. Further information about X was sealed in attachment A. B said he had previously been to defendant's apartment and purchased a half ounce of methamphetamine. Y, who was also a methamphetamine dealer, described defendant as a large scale methamphetamine dealer and said he had bought methamphetamine from defendant. Further information about Y was sealed in attachment A.
"Following a defense motion, the court held in camera hearings pursuant to [People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs)] and released a heavily redacted version of the previously sealed attachment A to the search warrant affidavit, which provided details about X, Y, and the wiretaps. The court denied the defense motion to disclose the identity of the confidential informants.
"In the redacted portion of attachment A, Updegraff states that in January 2010 Agent LeFlore learned from Sacramento Sheriff Deputy Gregory of two major methamphetamine dealers in Yolo County, one of whom was defendant. LeFlore and Gregory maintained contact throughout 2010 and LeFlore learned of a seizure of methamphetamine; the seizure was based on a wiretap obtained pursuant to a court order. After the seizure, another law enforcement agency had a separate wiretap up on an associate of that target, and Gregory continued to receive wiretap information regarding distributors in the Sacramento area. LeFlore learned that defendant was in continued contact with a dealer and obtained methamphetamine. During the last week of January 2011, Gregory told LeFlore of a seizure of methamphetamine. During this seizure, law enforcement located a pay/owe ledger for Go Go indicating $34,000. LeFlore knew Go Go was defendant.
"Almost all the information about X was redacted.
"Y was a methamphetamine dealer who was arrested with the drug. Y provided LeFlore with information in hopes of obtaining consideration for his case. Y had obtained methamphetamine from defendant and knew his residence and vehicles. Y had known defendant for about two years." (Gomez, supra, C077429 at pp. 2-4.)
The Initial Suppression Hearings
The People stipulated for the purposes of the suppression hearing that the wiretap was illegally obtained. (Gomez, supra, C077429 at p. 5.) The trial court found that the warrant was supported by probable cause without considering the information obtained through wiretaps. (Ibid.) The court further found the People failed to comply with the wiretap law and suppression of the wiretap information was the proper remedy. (Id. at pp. 5-6.) Reconsidering the evidence in the affidavit, the court denied the suppression motion, finding the informants' information was not derived from the wiretaps and sufficient evidence unrelated to the wiretaps established probable cause. (Ibid.)
Our Holding on the Initial Appeal
We held the trial court erred in failing to employ the burden shifting procedure as mandated by United States Supreme Court decisions. (Gomez, supra, C077429 at p. 9.) We also held the ruling below was based on the faulty premise that YONET received wiretap information only once (in January 2010) and, as such, was unsupported. (Id. at p. 10.) Thus, relevant findings were unsupported by substantial evidence and reversal was required. But because the trial court did not give the People the opportunity to prove some or all of the information from informants was independent of the wiretaps, we conditionally reversed and remanded for a new suppression hearing following the legally mandated burden shifting procedure. (Id. at pp. 10-11, 12.)
Proceedings on Remand
Defendant filed a written suppression motion on remand and the People filed a written reply.
The Hearing
The trial court held an in camera hearing with YONET Agent Richter on January 16, 2018. Following the in camera hearing, the trial court stated it needed information from Agent LeFlore to complete its evaluation. LeFlore was examined in camera by the court and prosecutor on January 30, 2018. Evidentiary hearings with LeFlore as the witness were held in open court on August 16, and September 14, 2018.
LeFlore testified that YONET agents conducted surveillance of Jessica Reyes, a suspected drug dealer, in May 2009. Reyes was seen leaving her hotel room and getting into a pickup truck driven by defendant. A search of Reyes' hotel room that month found methamphetamine and evidence of drug sales.
A YONET confidential informant met Tulysewski in January 2010. LeFlore arrested Tulysewski for possession of methamphetamine for sale in December 2010. During the investigation of Tulysewski, LeFlore was contacted by Sacramento County Sheriff's Detective Marcus Gregory in January 2010. LeFlore believed Gregory contacted him because LeFlore had conducted a database check on defendant which flagged him in another investigation. YONET learned from Gregory that defendant was a methamphetamine dealer. Gregory indicated this information came from wiretaps.
Gregory passed on information to LeFlore about drug dealers and drug distributors in the Sacramento area. Defendant had been in telephone contact with people in the Sacramento area; LeFlore was given wiretap information in 2010 and 2011. He talked to Gregory three or four times during 2010, once every three to four months, but not at regular intervals. LeFlore could not recall how often he discussed defendant with Gregory during these contacts.
In December 2010 LeFlore arrested confidential informant C. C gave him information about defendant without receiving any consideration in return. LeFlore did not get C's identity from Gregory and did not discuss C with the Gregory. LeFlore did not know of any reference to C in the wiretaps; C's arrest was separate from any information he got from Gregory.
In January 2011 LeFlore received wiretap information from Gregory that a large quantity of methamphetamine had been seized along with a pay-owe ledger showing $34,000 payable to Go Go. LeFlore and YONET began surveilling defendant that month, and observed short-stay traffic at his apartment.
On February 4, 2011, LeFlore received information from the mercenary informant B, who had provided correct information to the agent in the past. This contact did not come about due to any information from Gregory. YONET received information about defendant from informant Y three days later. As with B, LeFlore neither learned about this informant from Gregory nor discussed Y with him. To LeFlore's knowledge, Y did not show up in the wiretaps. LeFlore had investigated Y, and Y's arrest was independent from any information obtained from Gregory.
Consistent with his general practice, LeFlore did not ask these informants specifically about defendant. To his knowledge, the informants did not know about each other.
LeFlore did not follow this practice with informant X, and had solicited information about defendant from this person.
Findings and Ruling
The trial court made the following findings:
The first contact LeFlore and YONET had with Gregory was in January 2010, and there was no evidence YONET investigated defendant between then and December 2010. In December 2010, YONET received information about defendant from C, who volunteered the information without prompting from YONET. YONET did not seek a warrant after getting the information from C, and it likewise did not seek a warrant after getting information from X in January 2011. Because X had been specifically asked about defendant, the court did not consider X's information when evaluating the warrant for probable cause.
On February 4, 2011, YONET received information from the mercenary informant B, who was described as confidential and reliable. YONET did not seek a warrant after getting this information. YONET received information from Y on February 7, 2011. Y volunteered the information and did not receive consideration for it. After getting this information, YONET did further investigation and then sought a warrant.
The trial court found no evidentiary support for the conclusion that the evidence obtained from B, C, or Y was tainted by the wiretap information. The court found that the information from those sources alone supported the search warrant in this case and accordingly denied the suppression motion.
DISCUSSION
I
The Suppression Motion
Defendant contends that the trial court again failed to conduct a proper hearing, and the resulting findings are not supported by substantial evidence.
A. Whether the Mandated Procedure was Followed
In the prior appeal, we determined the trial court failed to follow the burden shifting procedure established in Nardone v. United States (1939) 308 U.S. 338 and Alderman v. United States (1969) 394 U.S. 165 for determining whether illegally obtained evidence taints other evidence. (Gomez, supra, C077429 at p. 9.) Alderman was a wiretap case in which the Supreme Court held that in the event of an illegal search, the government has "the ultimate burden of persuasion to show that its evidence is untainted," but the defendant "must go forward with specific evidence demonstrating taint." (Alderman, at p. 183.) The issue in Nardone was if wiretap statutes prohibited use of illegally intercepted communications other than their introduction as evidence. (Nardone, at p. 339.) The Supreme Court discussed the relevant burdens of proof and production as follows: "The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established . . . the trial judge must give opportunity . . . to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin." (Id. at p. 341.)
Here, defendant's suppression motion asserted the wiretap information was illegally obtained, fatally tainting the warrant. The People's reply conceded the illegality of the wiretap information. This satisfied defendant's initial burden to show illegality, and shifted the burden of proof to the People to show the independent origin of its information establishing probable cause for the warrant. The People then produced their witnesses and offered evidence of origin. Thus, defendant was given an opportunity to prove taint, and the trial court found the information from B, C, and Y was not tainted by the information received from the parallel Sacramento County investigation.
B. The Effect of In Chambers Proceedings
Defendant now argues Alderman establishes that ex parte proceedings are inadequate to determine the issue of taint, so the trial court was in error to rely in part on in camera hearings. The Attorney General argues forfeiture by failure to object to the procedure below and also that Alderman is not on point in that regard. We agree with both points, but briefly address the merits.
In Alderman the United States was to disclose to the defendants any surveillance records relevant to the ultimate issue of whether evidence was tainted by the illegally obtained wiretap information. (Alderman v. United States, supra, 394 U.S. at p. 181.) The United States argued "that the records of the specified conversations be first submitted to the trial judge for an in camera examination. Any record found arguably relevant by the judge would be turned over to the petitioner whose Fourth Amendment rights have been violated, and that petitioner would then have the opportunity to use the disclosed information in his attempt to show that the Government has used tainted evidence to convict him." (Ibid.) The Supreme Court disagreed, observing that "if the hearings are to be more than a formality and petitioners not left entirely to reliance on government testimony, there should be turned over to them the records of those overheard conversations which the Government was not entitled to use in building its case against them." (Id. at p. 183.)
As we noted before, the record here reflects that transcripts of the wiretaps referencing defendant were provided to the defense (see Gomez, supra, C077429 at p. 6); defendant does not contest this assertion on appeal. This distinguishes the situation in Alderman. Further, there appears no dispute but that disclosure of the identity of confidential informants is privileged. (Evid. Code, §§ 1041, 1042.) A suppression motion does not entitle a defendant to disclosure of confidential informants. "The Legislature and the courts have also sanctioned the procedure of sealing portions of a search warrant affidavit that relate facts or information which, if disclosed in the public portion of the affidavit, will reveal or tend to reveal a confidential informant's identity." (Hobbs, supra, 7 Cal.4th at p. 963, italics omitted.) Likewise, when a warrant based on information from confidential informants is challenged, "[i]n camera proceedings can effectively protect the government's confidentiality interests while safeguarding the defendant's rights and the integrity of the warrant issuing process. [Citation.]" (People v. Luttenberger (1990) 50 Cal.3d 1, 19 [approving in camera proceedings to address attacks on the veracity of a warrant pursuant to Franks v. Delaware (1978) 438 U.S. 154.) It does no violence to Alderman or Nardone to hold in camera hearings to determine whether information from confidential informants was tainted by other, improperly obtained information.
Further, the People presented evidence related to the taint issue at the public portion of the hearing on remand. Agent LeFlore testified on direct examination at the hearing that he did not learn the identity of any of the informants through Detective Gregory, and, to his knowledge, none of the informants were heard on the wiretaps. He added that the arrests that resulted in information from two of the informants were, in his knowledge, independent of any information received from Gregory. This evidence is still valid, whether also presented and considered by the trial court in camera or not. Because defendant had access to the relevant wiretap transcripts and evidence relevant to the taint question was presented, both in camera and in open court, the proceedings on remand were consistent with Alderman and Nardone and accordingly complied with our instructions in the prior appeal.
C. Probable Cause to Support the Warrant
Probable cause sufficient to support a warrant is defined as " 'a fair probability that . . . evidence of a crime will be found in a particular place.' " (Illinois v. Gates (1983) 462 U.S. 213, 238.) The magistrate's determination requires only a practical, commonsense evaluation of the facts, including the veracity and basis of knowledge of the sources of information, and simply requires a reasonable suspicion, not a prima facie showing of guilt or the exclusion of the possibility of third parties. (Ibid.; People v. Thuss (2003) 107 Cal.App.4th 221, 235.) We review the magistrate's issuance of the warrant de novo, deciding whether there is a substantial basis for the decision, and in borderline cases we will uphold a duly issued warrant. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784.) Likewise, we review for substantial evidence the trial court's determination that the People carried the burden of proving the untainted information supported probable cause for the search warrant. (People v. Cella (1983) 139 Cal.App.3d 391, 400, 402.)
The evidence here shows YONET learned of defendant's possible connection to methamphetamine sales in 2009, when Reyes, a suspected methamphetamine dealer, left a hotel room in which methamphetamine and evidence of drug sales was found, in a truck driven by defendant. YONET did not start receiving the tainted wiretap information from Deputy Gregory until January 2010. As the trial court correctly observed, YONET did not investigate defendant in 2010, even though it received three or four reports from Gregory during this time. YONET likewise did not investigate defendant even after receiving information from Gregory in January 2011, but only after YONET received the information from the confidential informants in January and February 2011.
Substantial evidence also supports the finding that these informants were not found through the wiretaps but rather by the efforts of Agent LeFlore and YONET. LeFlore testified that informants B, C, and Y were neither found through nor mentioned in the wiretaps, and that these informants volunteered information about defendant without prompting. In rendering a finding consistent with this testimony, the trial court implicitly found it to be credible. We defer to the trial court on matters of credibility. (See People v. Laiwa (1983) 34 Cal.3d 711, 718 [trial court conducting suppression hearing has power to judge credibility].) The trial court's ruling that the information from these informants was not tainted by the wiretaps is supported by substantial evidence, despite defendant's speculation as to the contrary.
As related in the search warrant, informants C, B, and Y all stated that defendant was a methamphetamine dealer, and B and Y also said they had purchased methamphetamine from him in his apartment. Sealed evidence regarding these informants further supports probable cause to issue the warrant. Probable cause supported issuance of the search warrant.
II
Hobbs Review
Defendant next asks us to review the sealed transcripts of the in camera hearings as well as the unredacted portion of Attachment A to the search warrant to independently determine whether there was probable cause to issue the search warrant.
Under Hobbs, "[o]n a properly noticed motion by the defense seeking to quash or traverse [a] search warrant" where any portion or all 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.)
"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 . . . . 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.]" (Hobbs, supra, 7 Cal.4th at p. 974.)
"If the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 974.)
"[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], the court should proceed to determine whether, under the 'totality of the circumstances' presented in the search warrant affidavit . . ., there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] In reviewing the magistrate's determination to issue the warrant, it is settled that 'the warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]' [Citation.]" (Hobbs, supra, 7 Cal.4th at p. 975.)
"If the court determines, based on its review of all the relevant materials, that the affidavit . . . furnished probable cause for issuance of the warrant . . . [citation], the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 975.) "In all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant application for possible appellate review. [Citations.]" (Ibid.) On appeal, we review for abuse of discretion. (Id. at p. 976.)
Having reviewed the transcript of the in camera proceedings and the sealed and unsealed portions of the search warrant affidavit, we conclude that there was no abuse of discretion. Probable cause supports the warrant.
III
Health and Safety Code Section 11370.2
Defendant contends that the 2018 amendment to Health and Safety Code section 11370.2, subdivision (c) is retroactive, and therefore defendant's consecutive term of three years for a prior drug offense conviction should be stricken. The People agree, and so do we.
In 2017 the Legislature amended Health and Safety Code section 11370.2(c), limiting the enhancements to prior convictions for a specific code section. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) Thus, defendant's prior felony convictions no longer support the imposition of the three-year enhancement under that section.
As both parties acknowledge, the amendment is retroactive and applies to cases like defendant's that are still on appeal and thus not yet final. (People v. Millan (2018) 20 Cal.App.5th 450, 455-456; see also In re Estrada (1965) 63 Cal.2d 740, 744-745.) The typical remedy is to strike the enhancement and remand for resentencing. (Millan, at p. 456.) We shall do so here.
DISPOSITION
The judgment is modified to strike the two Health and Safety Code section 11370.2 enhancements and otherwise affirmed. The matter is remanded for resentencing and subsequent preparation of a new abstract of the judgment and provision of a certified copy of said abstract to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Mauro, J.