People v. Avalos

Page 450

55 Cal.Rptr.2d 450

47 Cal.App.4th 1569, 96 Cal. Daily Op. Serv. 5718,

96 Daily Journal D.A.R. 9266

The PEOPLE, Plaintiff and Respondent, v. Julio Cesar AVALOS, Defendant and Appellant.

No. G016193.

Court of Appeal, Fourth District, Division 3, California.

July 31, 1996.

Stephan A. DeSales, Fullerton, and Jacqueline Goodman, Whittier, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle B. Davis and Nancy L. Palmieri, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, Associate Justice.

Defendant pleaded guilty to violations of HEALTH AND SAFETY CODE SECTIONS 11378¹, 11379, subdivision (a), and 11383, and admitted enhancements under section 11370.4, subdivisions (b)(1) and (3). He appeals on several grounds.

First, defendant challenges the trial court's denial of his motion for sanctions for failure to preserve certain evidence. We conclude that, since this claim is based on an alleged violation of due process, defendant waived it by his guilty plea.

Defendant also attacks the denial of his motions to suppress evidence seized from a truck after the police detained him and obtained his consent to search the vehicle, and to quash and traverse two search warrants which resulted in the seizure of additional contraband. We conclude the detention was reasonable and his consent was voluntary, although the police were less than candid about the object of the search. We also reject defendant's attacks on the search warrants. Finally, we reject defendant's complaint about his sentence, except that we modify it to stay execution on three counts.

FACTS

At the suppression hearing, Anaheim police officer David Severson testified that he learned from a confidential informant, who had previously given the police accurate information, that a number of persons were using a designated apartment in a methamphetamine operation. One of the persons using the apartment was described as a tall male Hispanic in his mid to late 20's with a medium build. While Severson and other officers surveilled the apartment, defendant, who fit the description given to Severson, arrived at the apartment complex driving a white pickup truck. After getting out of the truck, defendant looked around the area and entered the apartment.

Severson contacted the informant by cellular telephone. The informant identified defendant by name and said defendant used the truck to store and distribute methamphetamine.

Defendant, carrying a box, left the apartment and returned to the truck. The police followed him to a commercial storage business where they saw defendant leave a storage unit, carrying a smaller yellow and black box, which he placed in the truck. Defendant locked the unit and left, still followed by the police.

Severson directed a uniformed officer to stop defendant. Once stopped, defendant could only produce a telephone calling card as identification. The police determined his driver's license had been suspended.

Since defendant understood little English, a Spanish-speaking officer was called to the scene. At Severson's request, the officer told defendant he had been stopped as part of a burglary investigation and the police wanted permission to search the truck for stolen property "in addition to some other contraband." The police gave defendant a consent-to-search form, written in Spanish, which he reviewed. Defendant said he understood the form and signed it. Severson entered the truck, retrieved the box, and discovered it contained five pounds of methamphetamine. Defendant also carried a cellular telephone and a business card and entry code for the storage business. The detention lasted approximately 25 minutes.

The police sought search warrants for the apartment and the storage unit supported by two identical affidavits signed by Investigator Cindy Cederblad. She declared: "During the past 30 days, your affiant received information from a confidential reliable informant that a male Hispanic, age in his mid-20's, was involved in the transportation and sales of narcotics from ... [the apartment].... During those 30 days a surveillance was conducted intermittently." Cederblad summarized the surveillance team's observations of defendant at the apartment and the storage unit, but did not mention Severson's telephone contact with the informant. She then stated, "Sergeant Severson told your affiant that a probable cause traffic stop was ... initiated," resulting in "contact ... with [defendant], where he was ... identified ..., and a signed consent form was obtained ... to search the ... truck." Cederblad also summarized the results of the search. A magistrate issued the search warrants which resulted in the discovery of additional methamphetamine and drug-related paraphernalia.

Defendant moved to suppress the evidence obtained from the truck and to quash and traverse the search warrants under Penal Code section 1538.5. Before these motions were heard, the defense learned the police had lost the box retrieved from the truck during the initial search. Defendant then filed a motion to sanction the prosecution by deleting any reference to the box in the search warrants' supporting affidavits. The trial court denied the motions.

DISCUSSION

1. The Motion for Sanctions

Defendant objects to the trial court's denial of his motion for sanctions for failure to preserve the box found in his truck. The issue is not cognizable on this appeal.

The right to object to a failure to preserve evidence is protected by due process under the Fifth and Fourteenth Amendments. (California v. Trombetta (1984) 467 U.S. 479, 488-491, 104 S.Ct. 2528, 2533-2535, 81 L.Ed.2d 413; People v. Wakefield (1987) 194 Cal.App.3d 67, 68-69, 239 Cal.Rptr. 277.) Motions to suppress evidence under Penal Code section 1538.5 are restricted to Fourth Amendment issues. (People v. Campa (1984) 36 Cal.3d 870, 885, 206 Cal.Rptr. 114, 686 P.2d 634; People v. Wakefield, supra, 194 Cal.App.3d at p. 69, 239 Cal.Rptr. 277.) Such motions survive a guilty plea by statutory authorization. (Pen.Code, § 1538.5, subd. (m).) Due process claims, by contrast, focus on the guilt or innocence of the accused which are waived by the entry of a guilty plea. (People v. Jones (1995) 10 Cal.4th 1102, 1109, 43 Cal.Rptr.2d 464, 898 P.2d 910; People v. Wakefield, supra, 194 Cal.App.3d at p. 70, 239 Cal.Rptr. 277.)

Defendant argues People v. Aguilar (1985) 165 Cal.App.3d 221, 211 Cal.Rptr. 333 and People v. Swearingen (1978) 84 Cal.App.3d 570, 148 Cal.Rptr. 755 permit an appeal from the denial of a sanctions motion. Swearingen did not address the issue. (People v. Belleci (1979) 24 Cal.3d 879, 888, 157 Cal.Rptr. 503, 598 P.2d 473 [a case is never authority for a proposition not considered].) Aguilar does support defendant's position, but it is contrary to the weight of authority. (People v. Wakefield, supra, 194 Cal.App.3d at pp. 69-71, 239 Cal.Rptr. 277; People v. Halstead (1985) 175 Cal.App.3d 772, 778-782, 221 Cal.Rptr. 71; People v. Bonwit (1985) 173 Cal.App.3d 828, 831-832, 219 Cal.Rptr. 297; People v. Galan (1985) 163 Cal.App.3d 786, 796, 209 Cal.Rptr. 837; People v. Ahern (1984) 157 Cal.App.3d 27, 32, 204 Cal.Rptr. 11.) We find the reasoning of these cases more persuasive.

2. The Detention and Search of the Truck

Defendant attacks his initial detention by the police and the subsequent search of his truck. We reject each of his arguments.

Defendant claims he was illegally stopped by the police. "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231, 36 Cal.Rptr.2d 569, 885 P.2d 982; see also People v. Glaser (1995) 11 Cal.4th 354, 363, 368-369, 45 Cal.Rptr.2d 425, 902 P.2d 729.) Police may detain a suspect based on information received from a known informant. (Adams v. Williams (1972) 407 U.S. 143, 146-147, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612.) Even where the police receive information from an anonymous source, if independent police investigation establishes sufficient indicia of reliability for the tip, a temporary investigative detention is permissible. (Alabama v. White (1990) 496 U.S. 325, 331-332, 110 S.Ct. 2412, 2416-2417, 110 L.Ed.2d 301; People v. Ramirez (1996) 41 Cal.App.4th 1608, 1614, 49 Cal.Rptr.2d 311.)

The police had sufficient grounds to detain defendant temporarily. Severson testified the informant was known to the police and had previously furnished accurate information. The informant told Severson several persons were using a designated apartment in a methamphetamine operation. Defendant fit the description of one of the participants. When defendant appeared at the apartment complex, he scouted the area before entering the apartment. Severson then contacted the informant, who not only identified defendant by name, but said defendant used the truck for narcotics activity. The police saw defendant carry a box from the apartment, drive to the self-storage business and retrieve another box from the storage unit. This information was more than enough to temporarily detain defendant.

Defendant argues he was detained for an unreasonable length of time. Whether an investigatory detention was unduly prolonged turns on "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." (United States v. Sharpe (1985) 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605; see also People v. Dasilva (1989) 207 Cal.App.3d 43, 50, 254 Cal.Rptr. 563.) The detention was extended for an additional 15 to 20 minutes because of the need to...