PEOPLE v. HERNANDEZ

No. F069753.

THE PEOPLE, Plaintiff and Respondent, v. DAVID HERNANDEZ, Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Tutti Hacking , 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. Christofferesen and Michael A. Canzoneri , 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

POOCHIGIAN, J.

INTRODUCTION

Appellant/defendant David Hernandez's residence and business was searched pursuant to a warrant, and officers found a large amount of marijuana, oxycodone and hydrocodone pills, and indicia of sales activities. The affidavit filed in support of the warrant consisted of both a nonconfidential section, and a confidential section that was sealed by the court that issued the warrant. After the search, defendant was arrested and a complaint was filed that charged him with 10 felony counts based on the possession, sale, and transportation of the narcotics. Defendant's maximum exposure was approximately 14 years.

After the complaint was filed, defendant filed a motion to traverse the affidavit pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks), and alleged the nonconfidential portion of the supporting affidavit contained material misrepresentations and omissions, the remaining information in the affidavit failed to state probable cause, and the warrant should not have been issued. The court conducted an in camera hearing pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) and reviewed the confidential portion of the affidavit, returned to the courtroom and heard defendant's arguments about the alleged misrepresentations in the nonconfidential portion of the affidavit, and denied the motion to traverse.

Defendant then filed a motion to suppress the evidence pursuant to Penal Code section 1538.5.2 On the day scheduled for the preliminary hearing, the court conducted an evidentiary hearing on defendant's suppression motion, and then denied the motion. Thereafter, defendant waived the preliminary hearing, and the information was filed that alleged the same 10 felony counts against defendant.

After the information was filed, defendant moved for relief pursuant to section 995 and challenged the previous denials of his motions to traverse and suppress. As we will explain, such a motion is required by section 1538.5, subdivision (m) to preserve appellate review of suppression motions denied by the magistrate prior to the filing of the information. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal); People v. Richardson (2007) 156 Cal.App.4th 574, 593 (Richardson).)

The People opposed the section 995 motion, but also extended an offer for defendant to plead to three counts for a term of three years four months. The court advised defendant that it would not rule on his pending section 995 motion unless he rejected the plea offer.

Defendant subsequently accepted the plea offer, and the superior court did not rule on his section 995 motion. In the course of the plea and sentencing hearings, defendant stated that his motion to traverse was improperly denied, he should have received an evidentiary hearing pursuant to Franks, and the court improperly conducted the in camera hearing pursuant to Hobbs. Defendant declined to withdraw his plea and agreed to be sentenced. The superior court advised defendant that it would consider a request for a certificate of probable cause as to his complaints about the hearing on his motion to traverse, and it subsequently granted the certificate on that issue only.

On appeal, the parties disagree as to whether defendant preserved appellate review of the court's denial of his motion to traverse and his contentions under Franks, since the superior court never ruled on his section 995 motion that would have preserved his Fourth Amendment issues after his plea.

Defendant asserts that if this court determines that he failed to preserve review of the Franks issues, his defense counsel was ineffective for failing to advise him at the plea hearing that he was forfeiting appellate review by accepting the plea and not obtaining a ruling on his pending section 995 motion, and the omission was prejudicial because he has raised meritorious challenges to the denial of his motion to traverse. Defendant further contends that his ability to obtain appellate review of his suppression contentions was contemplated as part of his plea, and the matter must be remanded so that he can withdraw his plea and proceeding on his motions.

We find that defendant did not preserve appellate review of the denial of his motion to traverse, or any of his suppression contentions, because he entered his plea without obtaining a ruling on his section 995 motion. We also find that defendant cannot raise his Fourth Amendment contentions through an ineffective assistance claim since the superior court did not grant a certificate of probable cause on that issue, but that counsel's alleged ineffectiveness was not prejudicial.

Finally, we find that defendant's ability to obtain appellate review of his Fourth Amendment contentions was not an inducement to enter into the plea agreement, he declined multiple offers to withdraw his plea, and we decline to remand the matter so he can consider whether he should withdraw his plea.

FACTS

THE SEARCH WARRANT AFFIDAVIT

On November 1, 2013, Deputy Chase Dobbins of the Kings County Sheriff's Department filed an affidavit and statement of probable cause with the Superior Court of Kings County for the issuance of search warrants for defendant's residence at 8569 Curtis Way, and his barbershop, "In the Cutz," at 8679 E. Lacey Boulevard, both in Hanford.

Deputy Dobbins's affidavit consisted of both confidential and nonconfidential declarations regarding surveillance and observations from officers of the Kern County Narcotics Task Force (KCNTF).

Nonconfidential portion of the affidavit

In the nonconfidential portion of the affidavit, Deputy Dobbins declared that he was seeking a search warrant for two separate locations. The first location was identified as a single family residence at 8569 Curtis Way in Hanford, described the appearance of the residence, and stated that the front door faced "Curtis Street." The second location was identified as "In the Cutz," located in a single story commercial building at 8679 E. Lacey Boulevard in Hanford. The affidavit included attachments with photographs of both buildings.

Deputy Dobbins declared the following facts in support of his request for the warrant:

"On April 19, 2012, at approximately 1246 hours, the KCNTF records clerk received a phone call from an anonymous female subject. The female stated that a male subject named David Hernandez [defendant] was selling drugs out of his residence at 8569 Curtis Way. She said Hernandez partially raises the garage door and turned the outside light on. The anonymous female went on to say after the light goes on lots of vehicles come and go from the residence. She said people get out of the vehicles, go into the residence and come out within a couple of minutes placing items in their pockets. "On June 15, 2012, at approximately 1607 hours, KCNTF records clerk received a phone call from an anonymous female regarding David Hernandez at 8569 Curtis Way. The female stated [t]hat Hernandez is `dealing drugs' out of his house. "On June 26, 2012[,] at approximately 1541 hours the KCNTF records clerk received a phone call from an anonymous female. The female stated David Hernandez at 8569 Curtis Way was openly doing and selling drugs from his residence. The female said the problem appeared to be getting worse. "On October 22, 2012, KCNTF Investigators Matthew Smith, Gabe Padama, Josh Costner and I conducted surveillance at the address of 8569 Curtis Way, Hanford CA, 93230. The subject of the surveillance was David Hernandez. At approximately 2045 hours, the garage door opened and a female subject and a child exited the garage. The female walked past my location and I recognized her as Catrina Andrews (DOB 12/19/85) from previous contacts. I contacted KCSO Deputy Souza and requested he attempt to contact Andrews and confirm her identity. "Souza performed a consensual contact with Andrews near 8569 Curtis Way. Souza confirmed the female was in fact Catrina Andrews and determined she lived with David Hernandez at 8569 from her statement. While speaking to Andrews[,] Deputy Souza escorted the child into the residence. Souza said he contacted a male subject in the entryway of the house and turned the child over to him. Souza then went back outside to speak to Andrews. Deputy Souza told me he believed Andrews was possibly coming down from being under the influence of a controlled substance. Andrews was not arrested.[3] "After Deputy Souza cleared from the consensual contact, I met with him regarding the incident. I asked Souza if he got a good look at the male subject inside the residence, and he said he did. I showed Souza a photograph of David Hernandez I had recovered from the Kings County Jail booking photos system. Deputy Souza confirmed the male subject in the residence was David Hernandez. Souza told me when he opened the door to the residence[,] Hernandez appeared extremely nervous and unhappy about Souza looking inside of his residence. While speaking to Souza[,] I was contacted by KCSO Deputy Oliver. Deputy Oliver told me that he had received information that David Hernandez was selling methamphetamine out of his barbershop at 8969 E. Lacey Boulevard, Hanford[,] CA. "On Sunday, October 28, 2012, KCNTF Investigators Matthew Smith, Eric Hofmans and I conducted surveillance at the addresses of 8569 Curtis Way, Hanford[,] CA[] 93230, and 8679 E. Lacey Boulevard, Hanford, County of Kings, State of California[.] The subject of the surveillance was David Hernandez. Investigator Hofmans placed himself where he was able to see the residence at 8569 Curtis Way. At approximately 1934 hours, Investigator Hofmans saw a male subject open the garage door and exit on a bicycle. The subject closed the garage door and then [rode] away westbound on Curtis Way. The subject passed Investigator Smith and my position at Curtis and El Toro [W]ay. As he passed[,] I was able to confirm the subject was David Hernandez. "Investigator Smith and I followed Hernandez north on Carolyn Avenue. Hernandez turned westbound through the parking lot of the Tri-Mart gas station. Hernandez continued through the parking lot and came to a stop at the door to 8679 E. Lacey Boulevard, `In The Cutz' barbershop. Hernandez made contact with a Hispanic male standing outside of the barbershop. Myself and Investigator Smith saw Hernandez hand something to the Hispanic male and then take something from the subject and place it in his pocket. The Hispanic male walked to a silver 1999 Toyota car (4DTA055), and got into the passenger seat. The Hispanic male looked down into his hand as if inspecting an item. Due to my training and experience[,] it is my opinion the male subject had purchased narcotics from David Hernandez. The vehicle drove away eastbound on E. Lacey Boulevard. David Hernandez opened the door to the barbershop utilizing a key. He entered the shop with bike and turned on the lights. "A second Hispanic male subject in a blue `scrubs' nursing uniform exited the Tri-Mart gas station and approached the barbershop. The male subject contacted David Hernandez in the doorway of the barbershop. The male subject handed something to Hernandez and then sat down in a chair. "Hernandez then started giving the [male] subject a haircut. During the course of the haircut, Hernandez constantly paused and walked outside. While outside[,] he looked around as if he was waiting for someone. Several times different subjects contacted Hernandez outside the door of the barbershop and due to my training and experience[,] I believe they were conducting hand to hand transactions for narcotics from Hernandez.[4] "At approximately 2005 hours, Hernandez turned the lights off in the shop and exited the building. Hernandez locked the door from the outside. Hernandez put a black backpack on, got onto his bicycle and road eastbound through the Tri-Mart parking lot to Carolyn Avenue. Hernandez [turned] left on his bike south on Carolyn Avenue and out of my view. Investigator Smith and I drove to the intersection of David St[.] and Eddy St. and saw Hernandez arrive at 8569 Curtis Way. Hernandez road the bike up to the front door and knocked on a small window west of the door. Hernandez then road [sic] back out to the driveway as the garage door opened. Two female subjects were standing in the garage just inside the door. I recognized one as Catrina Andrews (12/19/85). I recognized the second female from previous contacts[,] however[,] I could not remember her name. Hernandez [rode] into the garage and the unknown female reached up and pulled the garage door shut. "There was a white Ford Focus, California license plate number 6MRL550, parked in the driveway of the residence. I ran a DMV check on the vehicle through Hanford dispatch. The vehicle came back registered to Wille Barrios or Jessica Lee, 16781 Jersey Avenue. I recognized the name Jessica Lee and believed that was the female who had shut the garage door. I later used the Kings County Jail mug shot system to find a photograph of Jessica Lee. I was able to confirm the female who shut the garage door was in fact Jessica Mary Lee 08/15/86. "It should be noted that Lee was arrested in April of 2012 for possession of a controlled substance for sale (Xanax, and Tylenol with Hydrocodone). She was also arrested this month on 10/19/12 for narcotic related offences [sic] including possession of Oxycodone Hydrochloride and being under the influence of a controlled substance. "On Tuesday, October 30, 2012, at approximately 1130 hours, I went to 8679 E. Lacey Boulevard `In the Cutz' barbershop in an attempt to see what the normal working hours for the shop were. When I arrived[,] I walked to the front door[,] which was locked. I looked inside the business through windows and saw it was unoccupied and appeared to be closed for business. I could not find business hours posted anywhere on the building. "I noticed a Hispanic male adult standing near a white pickup truck just north of the business. Acting in an under cover capacity in plain civilian clothes, I approached and asked the male if he knew when the barbershop opened. The male said[,] `I don't know. Sometimes he is here sometimes he's not.' I told him I was hoping to get a haircut. I asked the male if the guy that owned the shop gave good haircuts and he said[,] `I guess. He has a lot of customers when he's here, but I never really see him cut much hair. I told him he needs to be open more to get business.' I asked the male if he was waiting for the guy who owns the shop and said[,] `[Y]es.' I asked him if he was going to get a haircut and he said[,] `[N]o.' I didn't ask the male any further questions because he appeared to become a little nervous and suspicious of me. I left the area at that time. "Due to my training and experience[,] coupled with my observations described above, I believe David Hernandez is using his [b]arbershop to cover up his narcotic sales."

Deputy Dobbins further declared that defendant lived at the Curtis Way residence because he had personally observed him there, and Investigator Smith saw him "coming and going from the residence freely" within the prior week.

At the conclusion of his nonconfidential affidavit, Deputy Dobbins referred the court to "SEE CONFIDENTIAL ATTACHMENT."

Issuance of the search warrant

On November 1, 2012, Judge Tarter found probable cause to issue the search warrant for defendant, the house and the barbershop, and any vehicles associated with those locations.

The search

On November 6, 2012, deputies from the Kings County Sheriff's Department executed the search warrants at the house and the barbershop. Defendant was present at the house with Catrina Andrews and a minor child.

The officers found approximately 716 grams of marijuana and 100 plastic baggies at the barbershop. At the house, the officers found 29 oxycodone pills, five hydrocodone pills, Ecstasy, 85 grams of marijuana, cell phone evidence of sales, tools used to process concentrated cannabis oils, pay-owe sheets, a digital scale, and empty plastic baggies.

Defendant was arrested and initially held in custody. He was subsequently released on electronic monitoring.

THE AMENDED COMPLAINT

On March 15, 2013, an amended complaint was filed in the Superior Court of Kings County charging defendant with 10 felony counts:

Count I: Manufacture of concentrated cannabis (Health & Saf. Code, § 11379.6, subd. (a)); Count II: Possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)); Count III: Possession of methamphetamine for sale (Health & Saf. Code, § 11378); Count IV: Possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); Count V: Opening and maintaining a place for the purpose of unlawfully selling, giving away, and using a controlled, substance, marijuana (Health & Saf. Code, § 11366) Count VI: Child endangerment (§ 273a, subd. (a)); Count VII: Transportation or sale of oxycodone (Health & Saf. Code, § 11352, subd. (a)); Count VIII: Possession of marijuana for sale (Health & Saf. Code, § 11359); Count IX: Possession of oxycodone (Health & Saf. Code, § 11350, subd. (a)); Count X: Possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)).

As later stated by the prosecutor, defendant's maximum possible exposure on these charges was approximately 14 years. Defendant pleaded not guilty.

MOTION TO TRAVERSE

Franks and Hobbs

As we will explain, defendant filed a series of motions to challenge the warrant and the searches. Prior to addressing these motions, we will briefly review the applicable legal principles.

Franks

"Under Franks v. Delaware, supra, 438 U.S. 154 . . ., a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. The defendant must establish the statements are false or reckless by a preponderance of the evidence. [Citations.] Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] Moreover, `"there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[,] the defendant['s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine. . . . The motion for an evidentiary hearing must be `accompanied by an offer of proof. . . [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished," or an explanation of their absence given."' [Citations.] Finally, `[a] defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 456.)

Hobbs

"The Legislature and the courts have . . . 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 in original.) When a defendant files a motion to traverse under Franks, and all or a part of the supporting affidavit has been ordered sealed by the court that issued the search warrant, the court reviewing defendant's motion to traverse must comply with the following procedures "to strike a fair balance between the People's right to assert the informant's privilege and the defendant's discovery rights." (Hobbs, supra, 7 Cal.4th at p. 972; People v. Galland (2008) 45 Cal.4th 354, 364.)

"On a properly noticed motion by the defense seeking to quash or traverse the search warrant, 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.)

"The prosecutor may be present at the in camera hearing; defendant and his counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. [Citation.] Defense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceeding." (Hobbs, supra, 7 Cal.4th at p. 973.)

"Because, in sealed affidavit cases . . ., the defendant may be completely ignorant of all critical portions of the affidavit, the defense will generally be unable to specify what materials the court should review in camera. The court, therefore, must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant's reliability." (Hobbs, supra, 7 Cal.4th at p. 973.)

"Furthermore, because the defendant's access to the essence of the affidavit is curtailed or possibly eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 973.)

"The precise standard of review to be applied at the in camera proceeding will depend in part on the nature of the motion or motions noticed by the defendant. [I]n each instance the court must initially determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant's confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity." (Hobbs, supra, 7 Cal.4th at p. 973.)

"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.' (Franks, supra, 438 U.S. at pp. 155-156. . . .)" (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.] Such a procedure `will assure the defendant of a judicial check on possible police misrepresentations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants.' [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 974.)

"If, on the other hand, the court determines there is a reasonable probability that defendant would prevail on the motion to traverse — i.e., a reasonable probability, based on the court's in camera examination of all the relevant materials, that the affidavit includes a false statement or statements made knowingly and intentionally, or with reckless disregard for the truth, which is material to the finding of probable cause (Franks, supra, 438 U.S. at pp. 155-156 . . .) — the district attorney must be afforded the option of consenting to disclosure of the sealed materials, in which case the motion to traverse can then proceed to decision with the benefit of this additional evidence, and a further evidentiary hearing if necessary [citations], or, alternatively, suffer the entry of an adverse order on the motion to traverse. [Citation.]" (Hobbs, supra, 7 Cal.4th at pp. 974-975.)

"Similarly, if 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 and the oral testimony, if any, presented to the magistrate, there was `a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 975.)

With these standards in mind, we turn to defendant's various motions that challenged the warrant and the search.

Defendant's motion

On April 25, 2013, defendant filed a motion to "controvert (traverse)" and "quash" the search warrant, and "suppress" the evidence seized pursuant to Franks and section 1538.5.

Defendant's motion asserted that Deputy Dobbins's affidavit supporting the warrant was defective because of the omission of material facts and the inclusion of erroneous information. Defendant challenged Dobbins's references to anonymous telephone calls and asserted that he could have traced those numbers, that Deputy Souza performed an illegal entry when he followed Catrina Andrews and "escort[ed]" defendant's child into the house, and defendant's activities were equally consistent with innocent activity.5

John Jaramillo's declaration

Defendant's motion was supported by a declaration from John Jaramillo, who stated that he was the man in the blue scrubs mentioned in the affidavit, who was observed by the officers at defendant's barbershop on the evening of October 28, 2012. Jaramillo declared he went there for a haircut and wanted to watch the World Series on television. He was wearing blue scrubs because he had just left work. He had two beers and handed one to defendant. He told defendant that his girlfriend would pick him up, but she did not know the exact location of the barbershop. Defendant went outside several times to look for Jaramillo's girlfriend. When she arrived, Jaramillo left with her. The sheriff's department pulled them over as they drove away. Jaramillo was on informal probation and subject to being searched. The officers searched Jaramillo and the vehicle, and did not find anything.

Based on Jaramillo's declaration, defendant concluded that Deputy Dobbins's affidavit was full of "half-truths and speculation" because Dobbins failed to reveal that Jaramillo and his car were searched and nothing was found. Defendant argued the affidavit was "purposely inaccurate" pursuant to Franks.

Defendant asserted that once these inaccurate assertions were excluded, the remainder of the affidavit failed to state probable cause, and the superior court should quash the warrant and suppress the evidence seized from the house and barbershop.

The People's opposition

On April 30, 2013, the People filed opposition to defendant's motion to traverse and quash the search warrant. The People argued that even if Jaramillo's declaration was supported by the evidence, defendant's motion to traverse should be denied because the affidavit set forth additional evidence of drug activities at both defendant's house and business to establish probable cause.

The People requested the court conduct an in camera hearing pursuant to Hobbs to review the confidential portion of the search warrant affidavit. The People argued the entirety of the affidavit established probable cause for the search warrant.

Initial Scheduling hearing

On May 16, 2013, Judge DeSantos convened a hearing with the prosecutor, defendant, and defendant's retained counsel, Ronald Calhoun, and asked the purpose of the hearing. Defense counsel stated it was for a hearing on a motion. The court acknowledged that it had reviewed defendant's motion to traverse the warrant.

Judge DeSantos stated that "a close reading" of section 1538.5 indicated that defendant's motion to traverse had "to go back in front of the magistrate from whence it came," and that the warrant had been issued by a different judge, later identified as Judge Tarter.

The court asked the parties if they had any objections to its tentative ruling "to set this in Department 3 before the magistrate that issued the warrant." Both the prosecutor and defense counsel agreed. The court made the following findings:

"[T]he matter's come on the court's calendar for a motion. [¶] The motion is to traverse, and I think there was an argument that it wasn't properly named or something of that nature, but in any event after reading [section] 1538.5 of the Penal Code it appears that the magistrate that issued the warrant, and I checked with the court clerk's office last night, it was Department 3, the Court's going to continue this matter, if the parties waive time. . . ."

The parties again agreed. Defense counsel said he had three witnesses present — John Jaramillo, Lindsay Jones, and Robert Perreira. Counsel asked the court to order them to return for the continued hearing. The court set a date in Department 3, ordered the defense witnesses to return, and advised defense counsel that "if I'm correct in . . . preparing for a hearing on the motion, you probably wouldn't have live testimony until later in the day."

Judge DeSantos did not make any findings as to the merits of defendant's motion to traverse.6 Thereafter, defendant's motion was transferred to Judge Tarter, who had issued the search warrant.

Hearing on defendant's motion to traverse

On June 3, 2013, Judge Tarter convened the scheduled hearing on defendant's motion to traverse. The prosecutor, defendant, and Mr. Calhoun were present.

The court stated:

"This is on for a motion to traverse. We will take a recess while I meet in chambers with [the prosecutor] and the officers."

Defense counsel did not object.

Judge Tarter took a recess and conducted an in camera hearing. The court subsequently ordered both the confidential portion of the search warrant affidavit and the transcript for the in camera hearing sealed.

Both the in camera hearing transcript and confidential affidavit were filed with this court under seal. This court has reviewed the sealed transcript, and it shall remain sealed pending further order of the court.7

Nonconfidential hearing

After conducting the in camera hearing, the court returned to the courtroom in the presence of the prosecutor, and defendant, and Mr. Calhoun. The following exchange occurred:

"THE COURT: . . . This is on for a motion to traverse or quash the warrant. And, Mr. Calhoun, earlier this morning we had an in camera hearing and met with officers and the Court did review the Hobbs portion of the warrant and also the Court reviewed the Hobbs portion of the warrant. [¶] Do you have any objection to that procedure? "MR. CALHOUN: Was the informant here, your Honor? "THE COURT: Okay, the Court reviewed the Hobbs portion of the warrant. "MR. CALHOUN: I understand that. "THE COURT: That procedure — we didn't call the case before that. "MR. CALHOUN: Okay, no problem. "THE COURT: All right, thank you very much. What the Court did is reviewed the Hobbs portion along with the affidavit and has marked the Hobbs portion as Exhibit 2 and the affidavit as Exhibit 1, and we conducted the hearing."

(Italics added.)

The court asked defense counsel if he was contesting the officer's observations about John Jaramillo. Counsel said yes. The court asked if he wanted to present any additional evidence. Counsel said that in addition to Jaramillo, he had discovered information about Deputy Souza's entrance of the house with Catrina Andrews and the child; and there was also information about the man who was standing outside the barbershop who was waiting for his own business to open. Counsel complained the officers "took these and the way it's in the warrant, it's like this was all regarding [defendant] and it wasn't and we would like to bring that out."

The court asked the prosecutor whether he wanted to introduce any evidence. He declined.

The court's ruling

Judge Tarter did not invite defendant to introduce evidence or call witnesses. Instead, the court made the following findings as to defendant's motion to traverse pursuant to Franks, and also addressed the confidential and sealed portion of the affidavit:

"In order . . . to have this go to an evidentiary hearing [defense counsel] needs to allege substantial facts that would show that as a result of misleading information or omissions that there's a likelihood that the results would have been different; that is, that the affidavit would not support the issuance of a search warrant. "The Court in reviewing the Hobbs portion of the affidavit makes a finding that that order sealing the Hobbs portion is a valid and correct order and so the Court will not be allowing the unsealing of the Hobbs portion. "The Court also has reviewed that warrant and — or that Hobbs portion of the affidavit and determines that that alone is sufficient to warrant the issuance of the search warrant. In other words, should you prevail on the evidence that you want to present and the Court were to determine that those were either false, misleading either facts or omissions the Court would still find that there was probable cause to issue the warrant; therefore, your motion to traverse and quash is denied." (Italics added.)

The court ordered the Hobbs portion of the affidavit to remain confidential and sealed pending further order of the court.8

DEFENDANT'S MOTION TO SUPPRESS

On June 18, 2013, defendant filed a motion to suppress evidence pursuant to section 1538.5. Defendant filed his own supporting declaration, and challenged several aspects of the nonconfidential portion of Deputy Dobbins's affidavit.

In his declaration, defendant stated that the search warrant falsely stated that he had a driver's license that identified his address as 8569 Curtis Way. Defendant declared that he did not have a driver's license, and there was no evidence he lived at that house.9

Defendant further declared that Deputy Souza illegally entered the residence with Catrina Andrews and the child, that Souza never received permission to enter, and that defendant ordered him to leave. Defendant also disputed the affidavit's claim that he entered and left the house freely, even though the officers watched him knock on a window to get in.

The People's opposition

On July 17, 2013, the People filed opposition and argued the entirety of the affidavit set forth evidence that defendant had access to and lived at the residence, and defendant failed to present any evidence that Andrews did not consent to Deputy Souza's entry into the residence with the child.

Hearing on defendant's motion to suppress

Defense counsel's complaints about Judge Tarter's ruling

On September 26, 2013, Judge DeSantos convened an evidentiary hearing for both defendant's motion to suppress and the scheduled preliminary hearing.

At the beginning of this hearing, Judge DeSantos noted that Judge Tarter had already denied defendant's Franks motion. Defense counsel disagreed and said Judge Tarter had only conducted a "pre-Franks motion," counsel was not allowed to cross-examine any witnesses, and Judge Tarter "went in the back and listened to the people, came out and said she was going to deny the motion."10

The court reviewed Judge Tarter's ruling from June 3, 2013, that ordered the Hobbs warrant to remain sealed, found probable cause to issue the warrant, and denied defendant's motion to traverse. Defense counsel admitted his motion to traverse was denied, but complained that Judge Tarter "didn't have any witnesses in the courtroom. She went in the back and held it in the back" in the presence of the district attorney. The court asked counsel why Judge Tarter went "in the back." Counsel replied: "I have no idea."

The prosecutor explained that Judge Tarter reviewed the sealed portion of the search warrant affidavit in chambers outside defendant's presence, as required by Hobbs, and then denied defendant's motion to traverse and quash the warrant.

Defense counsel conceded that Judge Tarter denied his Franks motion, but again complained the judge "went in the back," and he was not allowed to participate. The court replied that Judge Tarter "went in the back" to review the sealed affidavit in camera.11

Judge DeSantos proceeded with the evidentiary hearing on defendant's motion to suppress.

Deputy Dobbins

Deputy Dobbins testified consistent with the declarations in the nonconfidential section of the search warrant affidavit about the anonymous tips, the officers' surveillance of defendant at the house and the barbershop, defendant's interactions with various people at both locations, and that defendant's activities appeared consistent with narcotics sales.

Deputy Dobbins testified that the search warrant stated defendant had a driver's license with a certain number. Dobbins conceded that defendant actually had a California Identification Card with that number, but identification cards and driver's licenses "have the same identification number. So when I searched it through Cal. Photo, it just came up with the Cal. I.D. number, which is the same." Dobbins testified he could not find the Curtis address as defendant's listed residence in the DMV database. He determined defendant lived at that residence based on the officers' surveillance that showed defendant regularly arriving and departing from the house.

Deputy Dobbins testified that defendant went in and out of the house through the garage. He knocked on a window to get in because he had his hands full with a backpack and his bicycle, but he appeared to have complete access to the house. During the search of the house, Dobbins determined the front door had been hammered shut and fortified so that it could not be opened.

Defense counsel asked Deputy Dobbins if he had used the department's caller identification system to determine the source of the anonymous tips about defendant. Dobbins explained that the narcotics task force office telephone did not have caller identification. Dobbins conceded he never saw defendant exchange drugs or money with other people.

Deputy Souza

Deputy Souza testified about his interaction with Catrina Andrews and the child during the surveillance period, as described in the nonconfidential portion of the affidavit. Souza contacted Andrews on the street, about three houses away from the Curtis residence, and asked for her identification. Andrews became nervous and said she did not have her identification. Andrews asked to drop off her son at a nearby residence, where she could get her driver's license. Andrews walked to the house, and Deputy Souza followed in his car. He got out of the car and Andrews led him to the open garage door. Andrews said she was going in to get her identification. Andrews said she lived there with "David."

Deputy Souza testified that he told Catrina Andrews he would follow her into the house to make sure there was no one inside who might threaten him. Andrews said it was okay and held open the door from the garage into the house. Souza stood near the door and saw Andrews walk down a hallway. Defendant suddenly appeared and looked shocked to see Souza. Souza told defendant that he was waiting for Andrews to get her identification. Souza testified he never walked around or searched the house, and he stayed near the garage door the entire time. Andrews appeared with her identification, Souza and Andrews went into the garage, and then Souza left.

Deputy Souza also testified that he searched John Jaramillo and his car after he left defendant's barbershop. Souza did not find any narcotics or contraband.

Catrina Andrews

Catrina Andrews testified that she lived at the Curtis residence with defendant, and he was renting the house. Andrews testified Deputy Souza said that she was being detained, and he just asked for her identification. Andrews testified that she never gave Souza permission to enter the house and he just walked in. Andrews went into the back bedroom to get her identification and told defendant that an officer was in the house.

Lindsay Jones12

Lindsay Jones testified she stopped at defendant's house to drop off some food. When she arrived, she saw Catrina Andrews and the child walk really fast to the house, and a police officer was driving alongside them. Jones got out of her car and tried to talk to Andrews, but Andrews hurried into the garage and the house, and the door slammed shut behind her. The officer asked Jones for her identification and advised her not to leave. The officer went into the garage, opened the door into the house, and went in. Jones never heard Andrews tell the officer that he could enter the garage or the house. When the officer left the house, he asked Jones if she had been drinking. Jones said yes. The officer said she smelled highly intoxicated and gave her a breathalyzer test. Jones passed it and the officer let her go.

The parties' arguments

The prosecutor argued the search warrant was valid based on the lengthy surveillance conducted by the officers. Defense counsel replied there was no evidence that defendant lived at the Curtis house, Souza illegally entered the residence and his observations of defendant in the house were the fruit of that illegal entry, and the officers never saw defendant sell or give drugs to anyone so that the warrant was invalid and the evidence should be suppressed.

The court's denial of defendant's suppression motion

The court rejected the credibility of the defense witnesses, denied defendant's motion to suppress, and also addressed Judge Tarter's denial of the motion to traverse:

"[W]e started off with the fact that a motion to traverse was made. Under the Franks standard, really what we're talking about is, in that case, whether or not the affidavit in search of the warrant, whether or not there was anything that was intentionally misleading to the magistrate that issued the warrant. "The magistrate did take it in camera and made a determination that the motion should be denied. Given that, that means that there was sufficient evidence to issue the warrant on its face, . . . and this Court does not know, but even if the magistrate had determined that one line or more or one statement or more was intentionally misleading by denying the motion, this Court must assume that the remaining portion of the affidavit was sufficient to have the warrant issued. "That matter then comes before this Court on the [section] 1538.5 [motion] to make a determination as to whether or not there is a violation of Fourth Amendment for the Court to strike it. "While it is not two bites of the apple, so to speak . . . it's still an issue as to whether or not the statements made by the officers to obtain the warrant still come into a determination of whether or not there's sufficient cause. "That, again, like I said, that's already been done by Judge Tarter; however, we now allow the defense to put on further evidence to determine whether or not a violation of the Fourth Amendment has occurred, and the standing for [a section 1538.5 motion] is basically just by a preponderance or sufficient evidence standard. "The Court in reviewing the facts, and again, having to determine the credibility of Jones as well as the credibility of Andrews as well as the credibility of the defendant when he puts himself in this matter, he basically in his declaration really points out to the fact and states that, `I do not and have never listed my address as 8569 Curtis Way . . .,' indicating the issue concerning the driver's license or the identification license listing his address. "However, looking at all the testimony that has come before me in this matter, two things stand out. The Court does believe that the defendant was residing at the residence. The Court does believe that consensual entry into the residence by the officer was either given at the beginning, or if it was not given when he came into the residence, there was no evidence that he was asked to leave the residence. "And, in fact, the officer allowed the defendant to go into the back bedroom. Had the defendant not had consent when the officer was actually following her in, I can't see of any officer that would allow a person to go into the back bedroom by themselves to obtain the purse with the driver's license or identification. So by him staying in there, obviously that was, in my opinion, consensual. "With respect to, in fact, he did not go into the rooms to search. [Defendant] in his statement indicates that he came out and asked him to leave or demanded that he leave, told him to get out and the officer got out. However, the first one, the first instance by the other person living in the residence, so therefore there is sufficient cause to have him there. "[S]o that's extra, additional evidence in this matter. . . . [Y]ou do have the anonymous tips in this matter. . . . "In addition you do have the surveillance which shows the defendant at the residence as well. It also shows him on October 28th returning to the house on his bike, knocking on the front window, riding his bike back out to the driveway or garage area, pulling the bike into the garage, and him actually manipulating the door. In addition, the officer also saw Jessica Lee who basically was a known drug offender. "Based on the totality of the circumstances in this matter, the Court believes that there was sufficient cause for the warrant in this particular matter, and that there's no violation of the Fourth Amendment. . . ."

Defendant's waiver of the preliminary hearing

Immediately after Judge DeSantos denied defendant's suppression motion, he stated that he would conduct the preliminary hearing, and invited the People to call any additional witnesses for that matter.

Defense counsel interrupted and said that defendant was going to waive the preliminary hearing for the charges in the amended complaint. The court advised defendant of his right to a preliminary hearing on the amended complaint, and that he would be entitled to a hearing if the People filed additional charges. Defendant waived his right and the court held defendant to answer.

THE INFORMATION

On October 10, 2013, an information was filed that alleged the same 10 felony counts against defendant, as in the amended complaint.13 As will be relevant to the subsequent plea proceedings, both the amended complaint and the information charged defendant with count V, opening and maintaining a place for the purpose of unlawfully selling, giving away, and using a controlled, substance, marijuana (Health & Saf. Code, §11366); count VI, child endangerment (§273a, subd. (a)); and count VII, transportation or sale of oxycodone (Health & Saf. Code, §11352, subd. (a)).

DEFENDANT'S SECTION 995 MOTION

On March 20, 2014, defendant filed a section 995 motion for relief, and challenged both Judge Tarter's denial of his motion to traverse and Judge DeSantos's denial of his suppression motion.14

Defendant asserted that Judge Tarter improperly denied his motion to traverse and his right to a "full determination" under Franks at the June 3, 2013, hearing. The court "abused its power" because it held an in camera hearing without giving a "legal explanation" to defense counsel, and the Hobbs in camera hearing was not required because he never moved to reveal the identity of a confidential informant.

Defendant asserted that the prosecutor and investigating officers "attended and answered questions asked by the court in chambers at an `in camera hearing.'" (Italics added.) Defendant argued the court disregarded the requirements of Franks because it did not allow defense counsel to cross-examine officers or submit a list of questions for the officers to answer at the in camera hearing.15

Defendant asserted Judge Tarter also violated his rights by summarily denying his Franks motion without conducting a full evidentiary hearing on the unsealed portion of the affidavit. Defendant claimed that Judge DeSantos initially found his Franks motion was meritorious because he set the matter for a hearing and transferred it to Judge Tarter.16

As to his suppression motion, defendant asserted that Judge DeSantos erroneously assumed Judge Tarter properly conducted his Franks hearing. Defendant requested either the suppression of the evidence and dismissal of the information, or for another judge to conduct a new hearing on his motions to traverse and suppress the evidence.

The People's opposition

On March 25, 2014, the People filed opposition, extensively reviewed Hobbs, and declared defendant did not "fully understand the procedures for conducting the hearing" in his motion to traverse since part of the search warrant affidavit was sealed. The People noted that defendant did not object to the in camera hearing. The People asserted that defendant's challenges to the affidavit's veracity did not undermine the court's finding of probable cause.

Defendant's response and motion to return property

On April 16, 2014, defendant filed a response to the opposition, and stated that he understood the difference between motions to traverse and suppress evidence, and Judge Tarter did not properly conduct the motion to traverse because she "talked to" witnesses whose identities were not disclosed, and defendant was not allowed to call or cross-examine witnesses.

Defendant also filed a motion to return property illegally seized during the searches of the residence and the barbershop, identified as marijuana and the items associated with distributing it. Defendant asserted for the first time that he was lawfully entitled to possess marijuana because he had a prescription for medical marijuana, and attached a copy of a physician's statement dated December 10, 2012.

PLEA DISCUSSIONS

On April 18, 2014, Judge DeSantos convened a hearing on defendant's pending motions. Defendant was present with Mr. Calhoun. The court did not make any findings on the merits of those motions. Instead, the court stated that the parties had discussed the matter in chambers and there was now a "hard offer" on the table.

The prosecutor stated defendant's maximum exposure on the information was approximately 14 years. The pending offer was for defendant to plead to count V, opening and maintaining a place for the purpose of unlawfully selling, giving away, and using a controlled substance, in violation of Health and Safety Code section 11366; count VI, child endangerment, in violation of section 273a, subdivision (a); and count VII, transportation or sale of oxycodone, in violation of Health and Safety Code section 11352, for a total term of three years and four months in prison.

The prosecutor explained the offer would be "off the table" by April 23, 2014. Defense counsel said he understood.

The court stated that it would continue the hearing on the defendant's pending motions, and it would not hear the motions unless the offer was off the table. The court did not make any tentative findings or rulings on defendant's motions.

PLEA PROCEEDINGS

On April 23, 2014, Judge DeSantos convened the continued hearing. Defense counsel stated there were two pending motions. The court reviewed its notes about the plea offer for counts V, VI, and VII.

"THE COURT: [T]he intent when I left last time was if he was going to take the offer then we would take the offer, if not I'm ready to move on the motion and move forward towards trial. So that's where we're at. And I have already tentatively told the parties what my [sic] after reviewing the motions and the response are. [¶] So we'll deal with that situation, and let me know. . . . If we can't come to an agreement I will ship you to another department." (Italics added.)

Defense counsel thanked the court, and the court trailed the matter.

After a recess, the court resumed the hearing and defense counsel stated that defendant would accept the plea offer for three years four months in prison. Thereafter, the court advised defendant of his constitutional rights, and defendant acknowledged and waived his rights.

The following exchange occurred when the court advised defendant that he was waiving his right to appeal his conviction.

"THE COURT: Do you understand that by pleading guilty you will be waiving your right to appeal any conviction in this matter, and do you waive your right to appeal any conviction? "THE DEFENDANT: To the conviction, sir? "THE COURT: Well — "THE DEFENDANT: Yes. "THE COURT: — to the conviction. "[DEFENSE COUNSEL]: He understands that, your Honor. "THE COURT: Okay. Is there any question as to what you are going to be appealing to [referring to defense counsel] or anything of that nature? "[DEFENSE COUNSEL]: I'm not appealing anything. "THE COURT: Okay. "DEFENDANT: Sir, all I'm going to appeal to is that I didn't get a Franks hearing, sir. I just want that part of the record, it's a 4th amendment violation so it shouldn't matter with the Court either way. "THE COURT: So you will be asking for a certificate of probable cause as to what motion that was actually heard? "THE DEFENDANT: Yes, sir. Yes, Sir. "THE COURT: I don't know, but generally that has to go up on a writ, but within 30 days, I think. [¶] In any event, but as to the conviction and the plea and the sentence you will be giving up your right to appeal all of that, correct? "THE DEFENDANT: Conviction, sir. "THE COURT: And as to the sentence, right? "THE DEFENDANT: Oh, and the sentence, yes, sir. Yes, sir." (Italics added.)17

The parties stipulated to the factual basis for the plea. In response to the court's questions, defendant said no one had made any promises to induce his plea other than what had been said in open court. The court asked defendant if he understood everything and defendant said, "Yes, sir, very much so."

Defendant pleaded no contest to count V, unlawfully opening and maintaining a place for the purpose of unlawfully selling, giving away, and using a controlled substance, marijuana (Health & Saf. Code, § 11366; count VI, child endangerment (§ 273a, subd. (a); and count VII, transportation or sale of oxycodone (Health & Saf. Code, § 11352. Defendant also admitted that he violated probation in an unrelated case.

Discharge of retained counsel

On June 17, 2014, Judge DeSantos convened the scheduled sentencing hearing. Mr. Calhoun stated that defendant had fired him.

Defendant addressed the court and said there were issues with the plea, but he still wanted to take it because it was a good deal, and he was going to appeal because he never got a Franks hearing.

Defendant further stated that count V had "changed" from the charge in the amended complaint, and a different offense was alleged in count V of the information. Defendant asked the prosecutor to "switch" the plea, and complained that the prosecutor would not give him another deal if he tried to withdraw his plea. Defendant said it was too risky to go to trial, but there was something wrong with his plea.

Defendant also stated he wanted to appeal the court's failure to give him a Franks hearing.

"I made a preliminary showing to you through my counsel. These guys, they didn't give me my Franks hearing, plain and simple. They did a Hobbs hearing. . . . I need my Franks hearing. And I think I have a right to a Franks hearing. And I never had a Franks hearing after you already gave me. "You told me — you set a date. You said, `You can have a Franks hearing, David. You made your preliminary showing, here's your date.' We go to Judge Tarter, she never gives me a Franks hearing. That's something that I need to appeal." (Italics added.)18

Defendant stated the district attorney's office "politically came after Mr. Calhoun wrong. I think the office doesn't give Mr. Calhoun a fair shake in court, and it's not his fault. . . I think it's a political harpoon."19 Defendant added that the officers lied in the search warrant affidavit because "I turned in Officer Servin. . . . I'm the reason Officer Servin got turned in and I think that's why I was raided."20

After making these complaints, defendant again said he still wanted to "take the deal" and go ahead with the sentencing hearing as long as the prosecutor would "fix" count V.

The prosecutor stated that he had no idea what defendant was talking about regarding count V, the charges did not change between the amended complaint and the information, and that defendant could withdraw his plea and the People were ready for trial.21

The court acknowledged that defendant had discharged Mr. Calhoun. Defendant initially said he wanted to represent himself. After further discussions, the court granted his request to appoint counsel to review the plea proceedings.

Sentencing hearing

On July 2, 2014, Judge DeSantos convened the scheduled sentencing hearing. Defendant appeared with his appointed counsel, Mr. Kaelble.

The court asked if there were any reasons not to proceed with sentencing. Mr. Kaelble said no, but that defendant wanted to put on the record that he intended to file a notice of appeal, and the court already said it would give him a probable cause certificate. Mr. Kaelble stated that defendant had just voluntarily turned himself in and was now in custody. Defendant complained about the calculation of his credits and whether he had time to talk with his attorney, and those were the reasons he was asking for a certificate of probable cause.

The court replied:

". . . I told you that I would give you a certificate of probable cause with respect to the issue on the hearing that you believed was inappropriately done with by Department 3 [Judge Tarter]. But other than that, I don't see — there was a waiver as to all other issues. "Now, at this point, we're at the sentencing phase. You've got — you fired your private counsel. You tried to go pro per. I recommended that you have an attorney. I appointed an attorney. The attorney has been with you for a while during that period you were out of custody, but yet you went into custody and now you're saying that you haven't had time to talk with your attorney?" (Italics added.)

Defendant said he needed time to research in a law library because the court previously said that "I couldn't get a certificate of probable cause without a writ, so I wanted to make sure it was in a writ today to ask you."

The court advised defendant that the People were eager to let him withdraw his plea and try him on the information. Defendant said he understood, he had enough time to talk with Mr. Kaelble, and he wanted to go ahead with the sentencing hearing.

Mr. Kaelble stated that defendant had already filled out a request for a certificate of probable cause.

"THE COURT: When the certificate of probable cause comes across, I'll take a look at it. I believe the record is clear that I indicated that he would be able to appeal from the Frank's [sic] hearing that he did or did not have. That was the issue. [¶] As far as all other matters, I don't recall stating to him any of the specifics that he seems to indicate he might have interpreted that way, but really, the only issue was the Frank's [sic] hearing. [¶] There were other motions that were put before me. I gave the attorneys tentative-type of decisions and then that was dealt with in the plea agreement and negotiations and they did not require a ruling on them, so that's how this was, this agreement was reached." (Italics added.)22

Mr. Kaelble stated he discussed with defendant whether to withdraw his plea and his prospects if the case went to trial on all the charges. The prosecutor stated he would not oppose defendant's request to withdraw his plea and he was ready for trial, but he wanted the record to be "abundantly clear" that defendant was continuing with the sentencing hearing "knowingly, intelligently, and voluntarily." The court replied the record was clear.

The court sentenced defendant pursuant to the negotiated disposition: as to count VI, the lower term of two years; count VII, a consecutive term of 16 months (one-third the midterm); and for count V, a concurrent term of two years (one-third the midterm) for an aggregate term of three years four months.

The court stated that it had received defendant's notice of appeal and request for a certificate of probable cause. It would review the documents and then determine whether they should be filed.

Notice of appeal/certificate of probable cause

On July 8, 2014, defendant's notice of appeal was filed. Defendant had checked the boxes that stated the appeal was from the denial of his motion to suppress pursuant to section 1538.5, the validity of the plea, and the court's failure to conduct a hearing pursuant to Franks.

Defendant also requested a certificate of probable cause. His handwritten request listed the following issues: that count V had been amended after the preliminary hearing; ineffective assistance of counsel, without specifying the basis for that claim; he was never allowed to challenge the search warrant affidavit pursuant to Franks; the court never told the defense that it was going to conduct a Hobbs review; the court did not allow the defense to submit questions for the Hobbs review; the court did not allow the defense to question witnesses before, during, or after the Hobbs review; the court allowed the People to "bolster" its case at the Hobbs hearing; defendant's newly appointed attorney did not have enough time to prepare; and the court did not conduct a Franks hearing as requested.

The superior court timely granted defendant's request for a certificate of probable cause only "per the plea agreement as to Franks issue." (Italics added.)23

DISCUSSION

I. The Scope of the Instant Appeal

We begin with the scope of the instant appeal in light of the procedural history of defendant's case and his decision to accept his plea offer before the court ruled on his pending section 995 motion.

Defendant contends that based on his discussions with the court at the plea and sentencing hearings, he preserved appellate review of all aspects of Judge Tarter's denial of his motion to traverse on June 3, 2013, and the entirety of the Fourth Amendment issues he raised prior to the filing of the information.

The People respond that defendant failed to preserve appellate review of these Fourth Amendment issues because he decided to accept the People's plea offer, abandoned his section 995 motion without obtaining a ruling, and thus failed to comply with statutory and legal authorities as to how to preserve appellate review of suppression issues raised before the filing of an information

We thus begin with the procedural hurdles to preserve appellate review of suppression motions after guilty pleas.

A. Lilienthal and Section 1538.5, Subdivision (m)

Prior to the unification of the municipal and superior courts, when a prosecution for a felony offense was initiated by a complaint and the defendant sought to raise Fourth Amendment issues, the defendant could file a motion to traverse a search warrant in municipal court that would be heard by the magistrate. (See, e.g., People v. Burns (1993) 20 Cal.App.4th 1266, 1270-1271 (Burns).) The defendant could also file a motion at the preliminary hearing to suppress evidence obtained from the search, and that would similarly be heard by the magistrate in municipal court. (Ibid.; People v. Brooks (1980) 26 Cal.3d 471, 476; Richardson, supra, 156 Cal.App.4th at pp. 582-583, 585; § 1538.5, subd. (f)(1).)

If the defendant thereafter entered guilty or no contest pleas, he or she could obtain appellate review of the magistrate's denials of the previously filed search and seizure motions under the limitations of section 1538.5, subdivision (m), which states in relevant part:

"A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence." (Italics added.)

In Lilienthal, supra, 22 Cal.3d 891, the court held that the italicized phrase in section 1538.5, subdivision (m) did not mean a pre-information preliminary hearing conducted by a magistrate. Instead, Lilienthal held the phrase "should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal." (Lilienthal, supra, at p. 896., italics added)

Lilienthal thus held that after pleading guilty or no contest, the defendant could preserve appellate review of a suppression motion initially denied by the magistrate only by bringing the motion in superior court, either through another suppression motion under section 1538.5, subdivision (i), or pursuant to a section 995 motion to dismiss based on a Fourth Amendment violation. (Lilienthal, supra, 22 Cal.3d at pp. 896-897.)24

"[T]he Supreme Court in Lilienthal essentially rejected the idea that a judgment of conviction for a felony imposed by a superior court could be challenged on appeal based on an error made by the committing magistrate at the preliminary hearing. Only if the defendant raised the search and seizure issue in the superior court — i.e., at some point after the preliminary proceedings before the magistrate — could the defendant be deemed to have raised that issue `at some stage of the proceedings prior to conviction' as required for appellate review of the issue under section 1538.5(m)." (Richardson, supra, 156 Cal.App.4th at pp. 584-585, italics in original.)

1. Impact of Court Unification on Lilienthal

"The unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court," and Lilienthal continues to apply after unification. (People v. Garrido (2005) 127 Cal.App.4th 359, 364 (Garrido).)

"The rationale for continuing to apply Lilienthal after unification is based on the distinct roles assigned to the magistrate and the superior court. [Citation.]" (People v. Garrido, supra, 127 Cal.App.4th at p. 364.) Lilienthal "never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judges — a distinction that remains valid even following unification." (Richardson, supra, 156 Cal.App.4th at p. 589.) Lilienthal still applies even if a superior court judge acts in the role of a magistrate in denying a suppression motion, and "requires a defendant to raise the search and seizure before a superior court judge acting as a superior court judge to preserve that issue for appellate review." (Richardson, supra, at p. 591.)

Thus, if the defendant is charged by a felony complaint and files motions to traverse and/or suppress before the magistrate, and those motions were unsuccessful, in order to preserve direct appellate review of these rulings the defendant "cannot plead guilty in front of the magistrate. Instead, he or she must proceed with the preliminary hearing (or waive his or her right to a preliminary hearing) and, after being held to answer, allow an information to be filed (or allow the complaint to be deemed an information). Then, he or she can either move to dismiss the information under section 995 or renew his or her suppression motion before trial under subdivision (i) of section 1538.5 and withhold his or her guilty plea until after his or her motion is denied a second time by the superior court." (Richardson, supra, 156 Cal.App.4th at p. 593, italics in original; People v. Hawkins (2012) 211 Cal.App.4th 194, 199-200 (Hawkins).)25

If the defendant entered a plea without preserving appellate review of his suppression motions, his appeal must be dismissed without prejudice to any rights he may have to relief by way of a petition for writ of habeas corpus. (Garrido, supra, 127 Cal.App.4th at p. 367; Richardson, supra, 156 Cal.App.4th at p. 597.)

B. Defendant Failed to Preserve Appellate Review

The instant case presents the exact scenario discussed by Richardson. Defendant was charged in an amended complaint with 10 felony counts. Prior to the preliminary hearing, defendant filed a motion to traverse the search warrant affidavit pursuant to Franks. The People filed opposition and requested an in camera hearing under Hobbs.

On June 3, 2013, Judge Tarter, acting as a magistrate, initially conducted an in camera hearing pursuant to Hobbs. Judge Tarter returned to the courtroom and heard argument from the parties. She denied the motion, finding that the confidential portion of the affidavit established probable cause regardless of defendant's allegations of misrepresentations and/or omissions.

Defendant next filed a motion to suppress the evidence under section 1538.5. On the day scheduled for the preliminary hearing, Judge DeSantos, again acting as a magistrate, conducted an evidentiary hearing and denied the suppression motion. Immediately thereafter, defendant waived the preliminary hearing on the amended complaint and he was held to answer.

The People then filed the information that alleged the same 10 felony counts against defendant; defendant's potential exposure was approximately 14 years.

Defendant filed a section 995 motion that challenged both Judge Tarter's denial of his motion to traverse and Judge DeSantos's denial of his suppression motion. Both rulings had been made prior to when he was held to answer and the filing of the information. Defendant also filed a motion for return of property, claiming he was legally authorized to possess marijuana.

In response to both motions, the People filed oppositions but also extended an offer for defendant to enter pleas to three counts for a negotiated disposition of three years four months in prison. The superior court advised defendant that the People were giving him one week to decide whether to accept the offer. The superior court further advised the parties that in light of the plea offer, it would not address defendant's pending section 995 motion unless the offer had expired and the case was going to proceed to trial.

Defendant was presented with the option of declining the plea offer, having the court address his pending section 995 motion, and going to trial with a maximum exposure of 14 years on 10 felony counts; or instead accepting the People's plea offer for three counts, with a maximum term of three years four months.

Defendant decided to accept the plea offer. As a result, and consistent with the court's pre-plea explanations, the court never ruled on the pending section 995 motion since defendant had accepted the plea offer.

As set forth in Lilienthal and Richardson, defendant forfeited appellate review of the magistrates' denial of the suppression motions, his motion to traverse, and his Franks issues because he decided to accept the plea instead of pursuing a ruling on his section 995 motion.

C. A Ruling Was Required On The Section 995 Motion to Preserve Appellate Review.

Defendant concedes that in order to obtain appellate review of the denial of his suppression motions, he was required to file a section 995 motion to challenge these rulings. Defendant also concedes that while he filed such a motion, the superior court never issued "a formal ruling" because he accepted the People's plea offer.

However, defendant argues the superior court "made an actual finding" and gave "an indicated ruling" to deny both his section 995 motion and motion for return of property, because it stated that it would only address the pending motions if defendant declined the plea offer and the matter went to trial. Defendant further argues that at the sentencing hearing, the court stated it had advised the parties about tentative rulings on the pending motions.

Defendant thus concludes that by giving indicated and tentative rulings, the superior court effectively ruled upon his section 995 motion to preserve appellate review of his suppression issues.

As explained above, by filing the section 995 motion after the information was filed, defense counsel took the first step to preserve appellate review of the magistrates' previous denials of defendant's motions to traverse and suppress. In addition to filing the section 995 motion, however, defendant was required to secure a ruling on the motion to preserve appellate review. (People v. Ellers (1980) 108 Cal.App.3d 943, 951; People v. Kain, supra, 212 Cal.App.3d at pp. 821-822.)

"[T]he distinction between a tentative ruling and a final one does not turn on whether the court has given significant consideration to the issue; it turns on whether the court has finished its consideration of the issue." (People v. Ennis (2010) 190 Cal.App.4th 721, 736, italics in original.) A "tentative ruling" is "not final," and the court is "free, legally, to make a final ruling" on a section 995 motion that may differ from its tentative ruling. (People v. Von Villas (1992) 11 Cal.App.4th 175, 241; People v. Superior Court (McCanney) (1978) 86 Cal.App.3d 366, 372.)

While the superior court might have given "indicated" or tentative rulings to the parties before defendant entered his plea, the nature and extent of those rulings were not on the record and certainly were not final. Defendant's section 995 motion challenged Judge Tarter's denial of his motion to traverse, along with the procedures employed during the hearing, and Judge DeSantos's denial of the suppression motion and rejection of the defense witnesses' testimony about the search of his house. There is nothing in the record to indicate how the court would have addressed the numerous issues raised in defendant's motions.

It was incumbent on defendant to press the matter further to preserve it for appeal, but he was well aware that the continued pursuit of his motions would result in the People's withdrawal of the advantageous plea offer. (See People v. Morris (1991) 53 Cal.3d 152, 195, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Holloway (2004) 33 Cal.4th 96, 133.) As explained by Lilienthal, "it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention." (Lilienthal, supra, 22 Cal.3d at p. 896.)

Defendant's failure to secure a ruling on the section 995 motion forfeited appellate review of his challenges to the magistrate's denial of his motion to traverse and all his Fourth Amendment contentions. (Richardson, supra, 156 Cal.App.4th at p. 593.)

D. The Certificate of Probable Cause

Defendant next contends that he preserved his right to appeal the denial of his suppression motions because the court agreed to and granted his request for a certificate of probable cause on his Franks issue.

Defendant further contends that when both his certificate and the notice of appeal are considered together, he has preserved appellate review of all Fourth Amendment issues he raised prior to entering his plea, and which he also addressed in his section 995 motion. Defendant states that in his notice of appeal, he checked the box to indicate that he was appealing the denial of his motion to suppress evidence under section 1538.5, and asserts that designation "encompass[ed] his motion to traverse/quash the warrant" and all Fourth Amendment issues he listed in the certificate of probable cause. Defendant argues that when the superior court granted his certificate for probable cause on the Franks issue, that grant encompassed "the breadth of issues" he raised in the certificate about the Fourth Amendment issues.

These arguments are meritless because the court and the parties cannot stipulate to appellate jurisdiction. "[A] guilty plea `concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt.' [Citation.] Thus, a guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility, even if the claim of evidentiary error is based on constitutional violations. [Citation.] `Other than search and seizure issues which are specifically made reviewable by section 1538.5, subdivision (m), all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea.' [Citation.]" (People v. Egbert (1997) 59 Cal.App.4th 503, 509; People v. Shults (1984) 151 Cal.App.3d 714, 718-719.)

Contrary to defendant's tortured contentions, the superior court and the parties cannot agree to expand the jurisdiction of the appellate court, and make cognizable on appeal an issue that was not preserved or has been waived by a plea of guilty or no contest. (People v. Kaanehe (1977) 19 Cal.3d 1, 9; People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; People v. Coleman (1977) 72 Cal.App.3d 287, 292.) The court's "acquiescence in a defendant's expressed intention to appeal is wholly ineffective to confer jurisdiction on the appellate court if the issue proposed to be raised is in fact not cognizable on appeal." (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1362.)

In addition, "[t]he issuance of a certificate of probable cause does not operate to enlarge the grounds on which an appeal may be taken." (Peoplev. Shults, supra, 151 Cal.App.3d at p. 719.) "Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty." (People v. Kaanehe, supra, 19 Cal.3d at p. 9; People v. DeVaughn, supra, 18 Cal.3d at p. 893.)

We note that while defendant's request for a certificate listed a myriad of reasons related to his suppression motions, the court granted the certificate of probable cause only as to the Franks issue. Even if the superior court had the ability to expand jurisdiction, it did not grant the request as to all the issues raised in the suppression motions filed before he entered his plea.

In any event, the superior court's decision to grant defendant's request for a certificate on the Franks issue did not confer appellate jurisdiction on this court to review his contentions about the Franks hearing or any other suppression issues.26

In issue III, post, we will consider whether defendant's ability to obtain appellate review of his Franks issues constituted an element of the plea that would allow him to withdraw his plea.

II. Ineffective Assistance

Defendant argues that if this court finds he failed to preserve appellate review of the magistrates' denials of his suppression motions, then his trial counsel was prejudicially ineffective for failing to "ascertain whether there was jurisdiction for [him] to appeal the Franks issue" before he entered the plea agreement. Defendant argues counsel's omission was prejudicial because if he had been advised "that he could not appeal the Franks issue under the plea agreement, [he] would not have entered the plea and would have insisted on going to trial."

"In order to demonstrate ineffective assistance, a defendant must first show counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel's performance or lack thereof. Prejudice is shown when 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. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 214-215.)

In reviewing an ineffective assistance claim on appeal, we will reverse a conviction only if the record affirmatively discloses that counsel had no rational tactical purpose for his act or omission. If the record contains no explanation for the challenged behavior, we will reject the claim unless counsel was asked for an explanation and failed to provide one or unless there can be no explanation. (People v. Hart (1999) 74 Cal.App.4th 479, 486.)

Defendant's ineffective assistance claims are "beyond the limited issues that are reviewable on appeal from a conviction following a guilty plea." (Richardson, supra, 156 Cal.App.4th at p. 596.) "Under section 1237.5, an appeal from a conviction predicated on a guilty plea requires a certificate of probable cause. `Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' [Citation.]" (Ibid.)

In his request for a certificate of probable cause, defendant raised a nonspecific claim of ineffective assistance; he did not explain the nature of that request when he discussed the certificate at the sentencing hearing. While the superior court granted defendant's request for a certificate, it only did so as to his Franks issue and did not grant his request as to his nonspecific claim of ineffective assistance. (Richardson, supra, 156 Cal.App.4th at p. 596 [failure to obtain certificate of probable cause required writ petition to raise ineffective assistance claim]; People v. Johnson (2009) 47 Cal.4th 668, 683-685 [claim of ineffective assistance of counsel does not obviate need for certificate of probable cause].)

Even if defendant had obtained a certificate of probable cause for ineffective assistance, counsel's failure to preserve review of any or all of his Fourth Amendment issues was not prejudicial. First, defendant accepted the plea offer of three years four months, when he had faced a maximum exposure of 14 years on the charged offenses in the information. Based on the timing of the plea offer, it was clear that the People were going to withdraw it if defendant decided to pursue his section 995 motion. At both the plea and sentencing hearings, defendant repeatedly said he wanted to accept the advantageous plea offer, and declined the court's offer to withdraw his plea and proceed with trial.

Second, even if defendant had pursued his section 995 motion, obtained a ruling, and preserved appellate review, we cannot say that his appellate contentions would have been meritorious. Defendant's claims about how Judge Tarter conducted the hearing on the motion to traverse are undermined by the record. Judge DeSantos's initial scheduling decision to transfer the matter to Judge Tarter did not act as a finding that defendant had satisfied his burden for a full Franks evidentiary hearing. When Mr. Calhoun asked if the confidential informant had been present at the in camera hearing, Judge Tarter twice replied that she had reviewed the sealed affidavit. Our review of the entirety of the record does not refute Judge Tarter's response, or give credence to defendant's repeated claim below and on appeal that the court allegedly questioned the People's witnesses at the in camera hearing or conducted any type of a "pre-Franks" evidentiary hearing without permitting defendant to submit questions or call witnesses.

"[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." (Franks, supra, 438 U.S. at pp. 171-172.) Judge Tarter denied an evidentiary hearing under Franks because she found that even if defendant prevailed on the evidence he sought to introduce to challenge the affidavit, "the Court would still find that there was probable cause to issue the warrant" based on the material in the confidential portion of the affidavit. Our review of the sealed affidavit supports this finding.

Defendant argues that the nonconfidential portion of the affidavit failed to state probable cause and contained material misrepresentations and omissions, based on the testimony at the suppression hearing from Jaramillo about the failed search; and testimony from Andrews and her friend that Deputy Souza entered the house without consent.

We note this evidence was never before Judge Tarter. The magistrate at the subsequent suppression hearing heard this evidence, but rejected the credibility of these witnesses and denied defendant's motion to suppress. If defendant had pursued his section 995 motion, the superior court would not have reconsidered any factual conflicts or substituted its judgment on the weight of the evidence. On appeal, this court would have reviewed the legal issue de novo, but similarly would have been required to uphold the magistrate's factual findings if supported by substantial evidence. (Hawkins, supra, 211 Cal.App.4th at p. 200.)

III. Remand to Withdraw the Plea

In the alternative, defendant asserts his plea was predicated and conditioned on being able to obtain appellate review of Judge Tarter's denial of his motion to traverse and "any Fourth Amendment violation," even though he failed to obtain a "formal ruling" on his section 995 motion, since the superior court "anticipated" that it would grant his certificate of probable cause.

Defendant contends that if this court finds it lacks jurisdiction to consider his appellate claims about his Fourth Amendment issues, then the plea offer was illusory and the proper remedy is to remand the matter and give him the opportunity to withdraw his plea. The People reply that remand to withdraw the plea would be an appropriate remedy.

A. Terms of the Plea Agreement

In contrast to the inability to acquiesce to appellate review, the claim that a plea was improperly induced challenges the legality of the proceedings resulting in the plea and is cognizable on appeal. (§ 1237.5; People v. DeVaughn, supra, 18 Cal.3d at p. 896.) When the defendant enters a guilty or no contest plea and seeks to invalidate the plea on appeal, he or she must ordinarily obtain a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766.) However, where the defendant seeks to enforce a plea agreement or challenge the court's failure to comply with the terms of the agreement, a certificate is not required. (People v. Brown (2007) 147 Cal.App.4th 1213, 1220; People v. Johnson (2009) 47 Cal.4th 668, 679, fn. 5.)

The process of plea bargaining "contemplates an agreement negotiated by the People and the defendant and approved by the court." (People v. Orin (1975) 13 Cal.3d 937, 942; In re Lewallen (1979) 23 Cal.3d 274, 280-281.) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636; see People v. Campbell (1994) 21 Cal.App.4th 825, 829.) "`Where a defendant's plea is "induced by misrepresentations of a fundamental nature" such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed.'" (People v. Hollins (1993) 15 Cal.App.4th 567, 574.) A defendant has the "established right to withdraw his or her guilty plea if the plea bargain is not honored. . . ." (People v. Casillas (1997) 60 Cal.App.4th 445, 450.)

"A plea or admission which is improperly induced by a trial court's misrepresentation purporting to preserve for appeal issues waived by such plea or admission may be attacked on appeal as invalid. [Citation.]" (People v. Bowie (1992) 11 Cal.App.4th 1263, 1266.) In Burns, supra, 20 Cal.App.4th 1266, the defendant filed a motion in the municipal court to quash and traverse a search warrant, and the motion was denied. Thereafter, he entered into a plea agreement which, among other things, provided that "`[i]t will be certified for appeal with regard to the denial of [the] motion to suppress.'" (Id. at p. 1270.) When the defendant challenged the denial of his motion to traverse on appeal, Burns held that it lacked jurisdiction to hear the matter because the defendant failed to renew the motion in the superior court as required by Lilienthal. (Burns, supra, at p. 1274.)

Burns further held that the matter would be remanded for the defendant to have the opportunity to withdraw his plea because "in the present case before [the defendant] entered his guilty plea, the prosecutor indicated that there was an agreement whereby, in part, the parties understood that the matter `will be certified for appeal with regard to the denial of [the] motion to suppress.'" (Burns, supra, 20 Cal.App.4th at p. 1274.) Burns held that the defendant's plea thus "included the agreement that he would be permitted to raise on appeal the denial of his motion to quash and traverse the search warrant." (Id. at p. 1269.) Since the defendant could not be "given the benefit of his plea bargain, which entailed the ability to raise on appeal the search and seizure claim, he must be permitted to withdraw his guilty plea." (Id. at p. 1274.)

A contrary conclusion was reached in Garrido, supra, 127 Cal.App.4th 359, where the defendant similarly failed to renew her suppression motion in superior court before she entered a plea. Garrido held the defendant had not preserved appellate review of her Fourth Amendment claims. (Id. at pp. 365-367.)

Garrido next considered whether the defendant's plea agreement included her ability to appeal the denial of the motion to suppress, and if she should have the opportunity to withdraw her plea as in Burns. Garrido rejected this argument because "[t]he only information in the record relating to an appeal is that [the defendant] did cross out the portion of the change of plea form relating to her waiver of the right to appeal and that, at the change of plea hearing, [the deputy district attorney] did ask for a waiver of her right to appeal." (Garrido, supra, 127 Cal.App.4th at p. 367.) Garrido found defense counsel's refusal to waive her client's right to appeal was not related to the suppression motion, and held "there is no reason to believe that [the defendant's] right to appeal the ruling on the suppression motion was contemplated by the plea agreement nor is there any way of knowing what [the defendant] understood." (Ibid.) Garrido concluded that the defendant had not been denied the benefit of her plea agreement: "Rather than guaranteeing [the defendant] an additional right to appeal, it appears the district attorney's office acquiesced to [the defendant's] retaining her ordinary rights to appeal." (Ibid.)

B. Analysis

Defendant cites to the court's statements before and after the plea in support of his claim that his ability to obtain appellate review of all his Fourth Amendment contentions was part of the plea agreement. Our review of these exchanges, however, show that the statements merely addressed the court's agreement to grant a certificate of probable cause on defendant's Franks issue, and did not include the right to an appeal as part of the plea agreement.

1. Plea Proceedings

The prosecutor initially stated the terms of the plea on April 18, 2014, and explained defendant's maximum exposure on the 10 felony counts in the information was 14 years, and the pending offer was for three counts with a term of three years four months. The prosecutor explained offer would be "off the table" by April 23, 2014. Neither the court nor the prosecutor made any statements about appellate rights.

On April 23, 2014, the court asked the parties about the status of the plea offer, stated it would not and trailed the matter for defendant and his attorney to confer. After a recess, defense counsel stated that defendant would accept the plea offer for three years four months in prison. Thereafter, the court advised defendant of his constitutional rights, and defendant acknowledged and waived his rights.

Defendant relies on the following exchange as evidence that his right to an appeal was part of the plea agreement. It began with the court's advisement that defendant was waiving his right to appeal his conviction.

"THE COURT: Do you understand that by pleading guilty you will be waiving your right to appeal any conviction in this matter, and do you waive your right to appeal any conviction? "THE DEFENDANT: To the conviction, sir? "THE COURT: Well — "THE DEFENDANT: Yes. "THE COURT: — to the conviction. "[DEFENSE COUNSEL]: He understands that, your Honor. "THE COURT: Okay. Is there any question as to what you are going to be appealing to [referring to defense counsel] or anything of that nature? "[DEFENSE COUNSEL]: I'm not appealing anything. "THE COURT: Okay. "DEFENDANT: Sir, all I'm going to appeal to is that I didn't get a Franks hearing, sir. I just want that part of the record, it's a 4th amendment violation so it shouldn't matter with the Court either way. "THE COURT: So you will be asking for a certificate of probable cause as to what motion that was actually heard? "THE DEFENDANT: Yes, sir. Yes, Sir. "THE COURT: I don't know, but generally that has to go up on a writ, but within 30 days, I think. [¶] In any event, but as to the conviction and the plea and the sentence you will be giving up your right to appeal all of that, correct? "THE DEFENDANT: Conviction, sir. "THE COURT: And as to the sentence, right? "THE DEFENDANT: Oh, and the sentence, yes, sir. Yes, sir."

(Italics added.)

In response to the court's questions, defendant said no one had made any promises to induce his plea other than what had been said in open court. The court asked defendant if he understood everything and defendant said, "Yes, sir, very much so." Thereafter, he pleaded no contest to the three counts.

During the course of the plea proceedings, the prosecutor never made any statements that defendant's right to obtain appellate review of any of his Fourth Amendment issues was part of the plea agreement. Defendant injected the issue into the court's advisement of his right to appeal. However, the court's responses similarly did not include his right to appeal the Franks issue as part of the plea agreement. Instead, the court simply clarified that defendant was asking for a certificate of probable cause about the Franks hearing.

2. Discharge of Retained Counsel

At the next hearing on June 17, 2014, defendant was supposed to be sentenced but instead moved to discharge Mr. Calhoun, his retained counsel. Defendant said he wanted to take the plea because it was a good deal and it was too risky to go trial. Defendant also raised his meritless claim that count V had been changed between the amended complaint, the waiver of the preliminary hearing, and the filing of the information. Defendant complained the prosecutor would not give him another deal if he tried to withdraw his plea.

Defendant also stated he was going to appeal the court's failure to give him a Franks hearing.

"I made a preliminary showing to you through my counsel. These guys, they didn't give me my Franks hearing, plain and simple. They did a Hobbs hearing. . . . I need my Franks hearing. And I think I have a right to a Franks hearing. And I never had a Franks hearing after you already gave me. "You told me — you set a date. You said, `You can have a Franks hearing, David. You made your preliminary showing, here's your date.' We go to Judge Tarter, she never gives me a Franks hearing. That's something that I need to appeal." (Italics added.)

After making these statements, defendant again said he still wanted to "take the deal" and go ahead with the sentencing hearing as long as the prosecutor would "fix" count V. The prosecutor stated that he had no idea what defendant was talking about regarding count V, and invited defendant to withdraw his plea so they could go to trial on the information. The court appointed counsel to review the plea proceedings with defendant, and continued the sentencing hearing.

Defendant's statements at this hearing about the Franks issue amounted to a restatement of the meritless claim previously raised by Mr. Calhoun — that Judge DeSantos somehow found defendant satisfied his initial burden for a Franks evidentiary hearing on May 16, 2013, when he reviewed defendant's motion to traverse and continued the matter for Judge Tarter to hear it. As we have explained, however, Judge DeSantos simply continued the matter so defendant's motion would be considered by the magistrate who had issued the warrant, and he never made any findings on the merits of the Franks claims.

More importantly, neither the court nor the prosecutor said anything to indicate that the plea included any type of the agreement that defendant could appeal his Franks claims or any of his Fourth Amendment issues.

3. Sentencing Hearing

The court finally conducted the sentencing hearing on July 2, 2014. Defendant appeared with his newly appointed counsel, Mr. Kaelble. The court asked if there were any reasons not to proceed with sentencing. Mr. Kaelble said no, and he did not move to withdraw the plea. Mr. Kaelble also said defendant wanted to put on the record that he intended to file a notice of appeal and the court already said it would give him a probable cause certificate.

The court replied:

". . . I told you that I would give you a certificate of probable cause with respect to the issue on the hearing that you believed was inappropriately done with by Department 3 [Judge Tarter]. But other than that, I don't see — there was a waiver as to all other issues. "Now, at this point, we're at the sentencing phase. You've got — you fired your private counsel. You tried to go pro per. I recommended that you have an attorney. I appointed an attorney. The attorney has been with you for awhile during that period you were out of custody, but yet you went into custody and now you're saying that you haven't had time to talk with your attorney?" (Italics added.)

Defendant said he needed time to research in a law library because the court previously said that "I couldn't get a certificate of probable cause without a writ, so I wanted to make sure it was in a writ today to ask you." The court replied the People were eager to let him withdraw his plea and try him on the information. Defendant said he understood, he had enough time to talk with Mr. Kaelble, and he wanted to go ahead with the sentencing hearing.

Mr. Kaelble stated that defendant had already filled out a request for a certificate of probable cause.

"THE COURT: When the certificate of probable cause comes across, I'll take a look at it. I believe the record is clear that I indicated that he would be able to appeal from the Frank's [sic] hearing that he did or did not have. That was the issue. [¶] As far as all other matters, I don't recall stating to him any of the specifics that he seems to indicate he might have interpreted that way, but really, the only issue was the Frank's [sic] hearing. [¶] There were other motions that were put before me. I gave the attorneys tentative-type of decisions and then that was dealt with in the plea agreement and negotiations and they did not require a ruling on them, so that's how this was, this agreement was reached."

(Italics added.)

Mr. Kaelble stated he discussed with defendant whether to withdraw his plea and his prospects if the case went to trial on all the charges. The prosecutor stated he would not oppose defendant's request to withdraw his plea and he was ready for trial, but he wanted the record to be "abundantly clear" that defendant was continuing with the sentencing hearing "knowingly, intelligently, and voluntarily." The court replied the record was clear.

Thereafter, the court sentenced defendant pursuant to the negotiated disposition. The court received defendant's notice of appeal and request for a certificate of probable cause, and said it would review the documents and then determine whether they should be filed.

As with the other hearings, defendant injected the question of an appeal into the proceedings. Neither the court nor the prosecutor made any statements to indicate that the plea agreement included defendant's ability to preserve appellate review his Franks issues. Instead, the court restated its previous advisement — that it would likely grant a certificate of probable cause on the Franks issue.

Just before the court imposed the sentence, it made a further comment that "[w]hen the certificate of probable cause comes across, I'll take a look at it," and added "I believe the record is clear that I indicated that he would be able to appeal from the Frank's [sic] hearing that he did or did not have. That was the issue." In making this comment, the court did not suddenly include the right to an appeal as part of the plea. Instead, it again stated that it would "look at the certificate of probable cause," as it had consistently stated at the previous hearings. It added that defendant would be "able to appeal" from the denial of the Franks hearing, which is inconsistent with the court's previous statements, including the one uttered immediately before it.

At this point, however, defendant had already entered his plea and the court's statements did not act as an inducement or agreement to include the right to appeal as a term of the plea agreement. Immediately after making the statement, both defendant and Mr. Kaelble agreed that they had sufficient time to discuss the plea agreement and sentencing, defendant did not want to withdraw his plea, and he wanted to continue with the sentencing hearing despite his numerous complaints.

We thus conclude that contrary to Burns, defendant's ability to obtain appellate review of any of his Fourth Amendment issues was not part of the plea agreement, and defendant cannot withdraw his plea on that ground.

DISPOSITION

The judgment is affirmed.

HILL, P.J. and MEEHAN, J., concurs.

FootNotes


2. All further statutory references are to the Penal Code unless otherwise indicated.
3. As will be explained below, defendant's motions to traverse and suppress the evidence asserted Deputy Souza entered the house without Andrews's consent, and Souza's observations of defendant in the house should have been excluded as the fruit of that illegal entry.
4. In support of his motion to traverse, defendant submitted a declaration from John Jaramillo, who stated he was the man in the blue scrubs; he went to defendant's barbershop for a haircut; he did not buy drugs from defendant; defendant went outside to flag down Jaramillo's girlfriend; Jaramillo left in his girlfriend's car; officers stopped the car immediately after he left; the officers searched Jaramillo and the car pursuant to a search condition of his probation; and drugs were not found.
5. Defendant's motion to traverse further asserted that Deputy Dobbins obtained the search warrant because defendant had turned in "Officer Servin." Defendant repeated this assertion at the sentencing hearing. Defendant never introduced any evidence or made an offer of proof to support this bare assertion.
6. We have quoted the entirety of Judge DeSantos's scheduling hearing because defendant subsequently claimed that when Judge DeSantos assigned the motion to Judge Tarter, he effectively found defendant's Franks motion was meritorious and that Judge Tarter was required to conduct an evidentiary hearing on his Franks claims.
7. Defendant argues Judge Tarter should not have conducted any type of in camera hearing because his motion to traverse did not seek to reveal the identities of any confidential informants described in the affidavit. As explained above, Hobbs requires the court to conduct an in camera hearing when a defendant brings a motion to traverse an affidavit, and all or a part of the affidavit has been sealed. (Hobbs, supra, 7 Cal.4th at pp. 963, 972.)
8. As explained above, the court may deny the defendant's motion to traverse without conducting a full evidentiary hearing if it determines that, based on its review of both the confidential and nonconfidential portions of an affidavit, "the materials and testimony before it do not support defendant's charges of material misrepresentation. . . ." (Hobbs, supra, 7 Cal.4th at p. 974.)
9. The warrant stated defendant's physical description with the following notation: "CDL: B6095040, 8569 Curtis Way. . . ."
10. A court "that is in doubt about whether to hold a Franks hearing has discretion to hold a so-called `pre-Franks' hearing to give the defendant an opportunity to supplement or elaborate on the original motion. Though permissible, this procedural improvisation is not without risk. . . . In such a pre-Franks hearing, the natural temptation for the court will be to invite and consider a response from the government. However, the court should not give the government an opportunity to present its evidence on the validity of the warrant without converting the hearing into a full evidentiary Franks hearing, including full cross-examination of government witnesses." (United States v. McMurtrey (7th Cir. 2013) 704 F.3d 502, 504, italics added.)
11. Mr. Calhoun's claims at the suppression hearing, that he had no idea why Judge Tarter went "in the back," are discredited by the record.

Mr. Calhoun filed defendant's motion to traverse Deputy Dobbin's affidavit. The lengthy, nonconfidential portion of Dobbins's affidavit ended with the following statement: "SEE CONFIDENTIAL ATTACHMENT." In its opposition to defendant's motion to traverse, the People requested the court hold an in camera hearing pursuant to Hobbs to review the confidential portion of the affidavit, and that both the confidential and nonconfidential portions established probable cause for the search warrant.

At the beginning of the hearing on the motion to traverse, defense counsel did not express surprise, shock, or confusion when Judge Tarter stated that she would conduct an in camera hearing. As set forth above, immediately after Judge Tarter conducted the in camera hearing and returned to the courtroom, defense counsel asked Judge Tarter if she had questioned the confidential informant. Judge Tarter replied that she reviewed the Hobbs portion of the affidavit: "What the Court did is reviewed the Hobbs portion along with the affidavit and has marked the Hobbs portion as Exhibit 2 and the affidavit as Exhibit 1, and we conducted the hearing." (Italics added.) Thereafter, the court invited argument from defense counsel on the merits.

Nevertheless, defendant and his counsel repeatedly asserted that Judge Tarter failed to comply with Hobbs because she purportedly heard evidence from the officers who went into chambers for the in camera hearing; this alleged evidence "bolstered" the People's case; the court failed to notify Mr. Calhoun or invite him to submit questions for these witnesses as required by Hobbs; and the court essentially conducted an inappropriate "pre-Franks" hearing without allowing defendant to introduce evidence. Defendant has repeated these assertions on appeal.

We have reviewed the sealed transcript of the confidential in camera hearing and found no evidence to undermine the accuracy of Judge Tarter's statements in response to Mr. Calhoun's question about the in camera hearing: "What the Court did is reviewed the Hobbs portion along with the affidavit and has marked the Hobbs portion as Exhibit 2 and the affidavit as Exhibit 1, and we conducted the hearing." (Italics added.)

12. Lindsay Jones was one of the defense witnesses who was present during Judge DeSantos's initial scheduling hearing on May 16, 2013, and who was ordered to return for the continued hearing on the motion to traverse.
13. Catrina Andrews was charged in the amended complaint with multiple felony and misdemeanor offenses. In the information, Andrews was charged with nine felony offenses. According to the People's opposition to defendant's section 995 motion, Andrews pled to section 273a, subdivision (a) and was sentenced to two years in prison on June 3, 2013.
14. As we will explain in issue I, post, when a defendant files suppression motions that are heard and denied by a magistrate prior to the filing of the information, he must preserve appellate review of the denial of those motions by filing a section 995 motion and obtaining a ruling on that motion from the superior court. (§ 1538.5, subd. (m); Richardson, supra, 156 Cal.App.4th at p. 593; People v. Kain (1989) 212 Cal.App.3d 816, 821-822.)
15. As with his earlier claims, defense counsel's description of Judge Tarter's hearing of June 3, 2013, is again incorrect. An in camera hearing pursuant to Hobbs is not limited to situations where a defendant moves for disclosure of a confidential informant. Instead, Hobbs requires the court to conduct a confidential in camera hearing where a defendant files a motion to traverse the affidavit in support of a search warrant, and all or some part of the affidavit has been sealed. (Hobbs, supra, 7 Cal.4th at pp. 963, 972.) The nonconfidential portion of the affidavit clearly stated there was also a confidential section that had been sealed, and the People's opposition requested an in camera hearing pursuant to Hobbs.
16. Defendant's assertions about Judge DeSantos are based on his statements at the scheduling hearing on May 16, 2013, when he decided to continue a hearing on defendant's motion to traverse so it could be heard by Judge Tarter, since she had issued the search warrant. The parties agreed and did not object. Judge DeSantos granted defense counsel's request to order three witnesses to return for the continued hearing, and added that there probably would not be "live testimony until later in the day."

Defendant relies on Judge DeSantos's statements and asserts that by setting the motion to traverse for a hearing before Judge Tarter, Judge DeSantos effectively found defendant had satisfied his initial burden under Franks so that he was entitled to obtain a full evidentiary hearing before Judge Tarter. Defendant has repeated this claim on appeal. To the contrary, Judge DeSantos did not make any findings on the merits and instead continued the matter so it could be heard in the correct department.

17. As we will explain in issue III, post, defendant relies on this exchange and other statements leading to his sentencing, and argues his ability to obtain appellate review of his Franks claims was part of the plea agreement, and he should be allowed to withdraw his plea.
18. Defendant was repeating Mr. Calhoun's earlier argument, as discussed above, where he claimed that Judge DeSantos effectively found defendant satisfied his initial burden under Franks for a full evidentiary hearing when Judge DeSantos assigned the matter to Judge Tarter on May 16, 2013. Defendant has repeated this claim on appeal. As we have explained, such an argument is specious because Judge DeSantos essentially conducted a scheduling hearing, he did not make any evidentiary findings about defendant's motion to traverse, and he decided to continue the matter and transfer it to Judge Tarter without objection from the parties.
19. Defendant's retained counsel, Mr. Calhoun, was formerly the elected district attorney of Kings County. Mr. Calhoun was present when defendant made these accusations, and he did not respond, support, or refute defendant's assertions.
20. As noted above, defendant previously asserted in his motion to traverse that the investigating officers targeted him because he had purportedly turned in "Officer Servin." Defendant never introduced any evidence or made an offer to proof about this allegation in any declarations or hearings, and he simply restated it as he discharged Mr. Calhoun. Defendant has repeated this unsupported claim on appeal.
21. While defendant's claims about count V were not preserved for appeal, his repeated complaints that the allegations for that charge had changed between the amended complaint, his waiver of a preliminary hearing, and the filing of the information are meritless. Both the amended complaint and the information, filed after defendant waived the preliminary hearing, alleged in count V that defendant committed the felony offense of unlawfully opening and maintaining a place for the purpose of unlawfully selling, giving away, and using a controlled, substance, marijuana, in violation of Health and Safety Code section 11366.
22. As we will discuss below, defendant relies on the court's reference to "tentative" rulings to argue that these "indicated" rulings on his section 995 motion preserved appellate review of all the pre-plea suppression motions.
23. At the sentencing hearing, Mr. Kaelble stated that defendant had already prepared a notice of appeal and written the request for certificate of probable cause, and one of the issues was that the court had failed to give Mr. Kaelble sufficient time to review the case after he was appointed. Mr. Kaelble stated this assertion was not true. Defendant agreed that Mr. Kaelble had enough time to discuss the matter with him and verbally withdrew that claim from his request for a certificate.

On appeal, defendant has not challenged the superior court's decision to grant his certificate of probable cause only for the Franks issue, although he claims the court's inclusion of the Franks issue encompasses all the Fourth Amendment claims raised in his motions.

As to the other issues listed in his request, defendant concedes the court's limited grant of the certificate excludes any appellate claims about the validity of count V, the nonspecific assertion of ineffective assistance, and his withdrawn claim that Mr. Kaelble did not have sufficient time to prepare.

24. "Section 995 provides that an information shall be set aside on a defendant's motion if `the defendant had been committed without reasonable or probable cause.' (§ 995, subd. (a)(2)(B).) `A defendant is held to answer without reasonable or probable cause within the meaning of section 995 of the Penal Code when the only substantial evidence supporting his commitment has been obtained in violation of the Fourth Amendment.' [Citation.]" (Richardson, supra, 156 Cal.App.4th at p. 583, fn. 3.)
25. For purposes of appealability, there is no difference between a guilty plea and a plea of no contest. (§ 1016; People v. Castro (2012) 107 Cal.App.4th Supp. 9, 14.)
26. On appeal, the People state that defendant failed to preserve review of his Fourth Amendment issues because he accepted the plea offer and abandoned his section 995 motion. However, the People also state that "the only decision authorized by the certificate of probable cause is the denial" of defendant's motion to traverse by Judge Tarter. The People addressed the merits of defendant's arguments, and concluded his claims are meritless in light of Franks and Hobbs.

In his reply brief, defendant asserts that at the very least, the parties contemplated review of Judge Tarter's ruling on the Franks issue, and responds to the People's assertions on the merits of his Hobbs and Franks issues.

To the extent the People might have conceded on appeal that defendant preserved appellate review of his Franks issue, we are not bound to accept such a concession. (People v. Hawkins, supra, 211 Cal.App.4th at p. 202.)


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