P. v. Anderson

Filed 10/23/07 P. v. Anderson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After defendants motion to quash a search warrant and suppress evidence was denied, he waived his right to a preliminary hearing and entered a certified no contest plea to one count of cultivation of marijuana (Health & Saf. Code,  11358). Among the terms of the plea was a promise that defendant retained the right to review the denial of his motion to suppress on appeal. We conclude that defendants plea constitutes a waiver of his right to renew his challenge to the search warrant in this appeal, but we must remand the case to the trial court to give defendant the opportunity to withdraw his plea.

STATEMENT OF FACTS AND PROCEDURAL HISTORY[1]

The search warrant affidavit submitted in support of the request for a warrant to search defendant and the residence at 113 Pirates Cove in Vallejo was based on sealed information provided by a confidential informant,[2] along with observations by the affiant, an officer experienced in narcotics investigations. According to the unsealed portion of the affidavit, the officer visited the residence at 113 Pirates Cove in Vallejo and observed a GMC truck parked in the driveway that was registered to Stephen or Amy Anderson at that address. The officer had seen defendant drive this vehicle on numerous prior occasions over the past year. The officer also noticed that the gap between the garage door and frame had been covered with some type of brown backing, which to him was indicative of marijuana cultivators as this conceals light . . . and odors from the outside.

The search warrant for defendants residence in Vallejo was served on August 25, 2005. Inside the house and a separate room built into garage the officers discovered and seized a total of 29 dry marijuana plants weighing approximately 13 pounds, buckets filled with marijuana buds, leaves and stems, and syringes containing a substance believed to be steroids, along with equipment and paraphernalia used to grow marijuana. A PG&E representative who examined the scene offered an opinion that a bypass below the meter supplied electricity to the garage room.

Defendant was charged in a felony complaint with possession of marijuana for sale and (Health & Saf. Code,  11359) and cultivation of marijuana (Health & Saf. Code,  11358). He thereafter moved to unseal the search warrant affidavit and traverse and quash the search warrant. Following an in camera hearing the trial court denied the motion to unseal the affidavit.

On February 2, 2006, a contested hearing was held on the motion to quash and traverse the search warrant. The court found that the warrant was supported by sufficient probable cause stated in the affidavit, and even if not, the corroboration of the confidential informant was adequate to allow the officers to, in good faith, rely on an impartial magistrates issuance of that warrant under United States v. Leon (1984) 468 U.S. 897, 921922. The motion was denied.

Defendant entered a plea of no contest to the marijuana cultivation charge (count 2) at a hearing on December 14, 2006. Pursuant to a negotiated disposition, the remaining charge was dismissed, defendant was granted bail pending appeal, and the parties agreed to search and seizure on appeal. The waiver of rights form signed by defendant also indicated that he will be allowed to appeal ruling on suppression motion. Defendant waived his right to a preliminary hearing, and the hearing date was vacated.

At the sentencing hearing on January 25, 2007, the trial court suspended imposition of sentence, granted defendant three years of probation, with standard terms, including 90 days in county jail. Defendant was granted bail and a stay of the terms of probation pending the completion of the appeal process. The court also declared that defendant can appeal this Courts ruling on the suppression motion. This appeal followed.

DISCUSSION

Defendant argues that the trial court erred by denying his motion to traverse and quash the search warrant. He claims that the corroboration of the confidential informants statements was inadequate to furnish probable cause to support issuance of the warrant. Defendant realizes that his plea and failure to renew his motion to suppress evidence in the superior court presents an obstacle to review of the search and seizure ruling in this court. In the event we find a waiver, he asks that we also find that the plea agreement has been violated, and remand the case to the trial court to allow him to withdraw his plea and obtain appellate review of his suppression motion as promised in the plea agreement.

I. Defendants Failure to Obtain Review of the Magistrates Ruling on the Suppression Motion.

As the Attorney General argues and defendant seems to anticipate, he has waived his right to contest the ruling on his suppression motion by entering his plea without seeking review of the magistrates ruling in the trial court. Penal Code section 1538.5, subdivision (m) provides that  [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. This rule applies to pleas of nolo contendere as well as pleas of guilty. (People v. Mazurette (2001) 24 Cal.4th 789, 793; see also People v. Collins (2004) 115 Cal.App.4th 137, 149.) Subdivision (m) adds a critical caveat to the provision for appellate review, however, by specifying,  Such 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.  (People v. Hunter (2002) 100 Cal.App.4th 37, 41; see also People v. Hobbs (1994) 7 Cal.4th 948, 956.) Thus, to preserve a search and seizure issue on appeal, it is not enough to raise it before the magistrate; instead, the defendant must make a motion in superior court pursuant to Penal Code section 1538.5 or section 995. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal); People v. Gutierrez (2004) 124 Cal.App.4th 1481, 14841485; People v. Callahan (1997) 54 Cal.App.4th 1419, 1423; People v. Burns (1993) 20 Cal.App.4th 1266, 1272 (Burns).) Defendants failure to renew his challenge in the superior court precludes appellate review of his claim of error because . . . it would be wholly inappropriate to reverse a superior courts judgment for error it did not commit and that was never called to its attention. [Citation.] (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252.)

Further, 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. [Citations.] Lilienthal continues to apply postunification because the California Constitution, article VI, section 23, subdivision (c), which created the unified court system, specifically provides for superior court review of preliminary hearing suppression motions. [Citation.] The rationale for continuing to apply Lilienthal after unification is based on the distinct roles assigned to the magistrate and the superior court. (People v. Garrido (2005) 127 Cal.App.4th 359, 364.)

The promise in the certified plea agreement that defendant may seek appellate review of the ruling on the suppression motion also does not avert the waiver. The certified plea process is, by its nature, intended to short-circuit further judicial proceedings, and the preclusion of a search and seizure issue from being raised on appeal is consistent with that approach. (Burns, supra, 20 Cal.App.4th 1266, 1273.) Despite the prosecutions agreement as part of the plea bargain that defendant would be entitled to appeal of the denial of his motion to suppress, the parties cannot by their agreement confer upon this court the jurisdiction to hear an issue which is not appealable. [Citation.] Although this court has jurisdiction to entertain an issue regarding sentence after appellants plea of guilty [citations], we have no authority pursuant to section 1538.5, subdivision (m), to review appellants search and seizure claim, which was precluded from consideration in the superior court by appellants certified plea. (Id., at p. 1274.) We thus conclude that defendant is precluded from renewing his challenge to the search warrant in this appeal.

II. Breach of the Plea Agreement.

We turn to defendants contention that if he cannot obtain appellate review of his search and seizure claim, he is entitled withdraw his plea. We are guided by the settled rule that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled. [Citation.] The Supreme Court has recognized that due process requirements apply not only to the taking of the plea, but also to implementation of the bargain. [Citation.] It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citation.] This does not mean that any deviation from the terms of the agreement is constitutionally impermissible. [Citation.] Rather, the variance must be  significant in the context of the plea bargain as a whole to violate the defendants rights. [Citations.] (People v. Arata (2007) 151 Cal.App.4th 778, 786787, italics omitted; see also People v. Masloski (2001) 25 Cal.4th 1212, 1217; People v. Lopez (1998) 66 Cal.App.4th 615, 635636; People v. Campbell (1994) 21 Cal.App.4th 825, 829.)

The determinative test is whether the plea  rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration;  if so,  such promise must be fulfilled. [Citation.] (People v. Quartermain (1997) 16 Cal.4th 600, 620.)    A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.   [Citation.] When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. [Citation.] (People v. Vargas (2001) 91 Cal.App.4th 506, 533.) 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.)

We conclude that a crucial part of the inducement or consideration for the plea, at least from the perspective of the defense, was the promise that defendant would receive appellate review of his claim that the search of his residence pursuant to the warrant was unlawful. The assurance of review on appeal was not only articulated in the waiver of rights form signed by defendant, but specifically mentioned at the change of plea hearing. Then at the sentencing hearing both defense counsel and the trial court emphasized several times that the right to appeal the ruling on the suppression motion had been granted to defendant. With the right of appeal lost, defendant has been deprived of a significant condition of the plea agreement, and must be given a remedy. (Burns, supra, 20 Cal.App.4th 1266, 1274.)

We decline defendants suggestion to remand the case to the trial court so that he may obtain appellate review of his suppression motion as promised in the plea agreement. Specific performance of the plea agreement is inappropriate and contrary to the law. We lack jurisdiction to afford defendant appellate review of the suppression motion. (Lilienthal, supra, 22 Cal.3d 891, 896.) As in Burns, we find that the appropriate remedy is to give defendant the opportunity to withdraw his guilty plea and renew his suppression motion in the superior court, if he so chooses. (Burns, supra, 20 Cal.App.4th 1266, 1274; see also People v. Navarro (2006) 138 Cal.App.4th 146, 156, fn. 4; People v. Garrido, supra, 127 Cal.App.4th 359, 366.)

DISPOSITION

The judgment is reversed and the case remanded to the superior court with directions to vacate the no contest plea if defendant makes an appropriate motion within 30 days after the remittitur is issued. In that event, the superior court is also directed to reinstate the original charges contained in the felony complaint, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no motion to vacate the plea is filed by defendant within the prescribed 30-day time limit, the trial court is directed to reinstate the original judgment.

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[1] In light of the plea and the lack of any preliminary hearing in this case, we will recite very concisely from the probation report the facts that pertain to the charged offenses.

[2] The information provided by the CI was attached to the affidavit and ordered sealed to protect the identity of the informant.