P. v. Huerta

Filed 11/18/08 P. v. Huerta CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Stephen A. Marcus, Judge. Affirmed.

David Arrendondo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Gerardo Huerta, appeals from the judgment entered following his plea of no contest to possession of cocaine for sale and false compartment activity, with arming and drug quantity enhancements (Health & Saf. Code,  11351, 11366.8, 11370.4; Pen. Code,  12022).^[1] Huerta was sentenced to state prison for a term of 11 years.

The judgment is affirmed.

BACKGROUND

According to the evidence presented at the preliminary hearing, surveillance officers observed Huerta bring a heavy duffel bag from a North Hollywood hotel room to a residence in Azusa. Huerta remained at the residence for 15 minutes and then drove away. Detective Chris Alkadis, a narcotics task force investigator, obtained a warrant to search the house. In an upstairs bedroom, officers found a .357-caliber Glock semiautomatic handgun and a safe containing $5,500 cash. In the attic, officers found 25 kilograms of cocaine. Huertas car had a radio-controlled hidden compartment behind the rear seat.

Huerta attacked the validity of the search warrant, asserting it lacked probable cause and that it was facially invalid. With regard to the latter issue, Huerta complained the prosecution had provided the defense with two different documents each purporting to be the search warrant, that the magistrates signatures were suspicious, and that Detective Alkadis had not filed the sealed portion of the search warrant affidavit with the court clerk.

The trial court ruled the search warrant was supported by probable cause. After letting the defense examine the original warrant and supporting affidavit, the trial court ruled it had no doubt as to its legitimacy.

CONTENTIONS

1. The search warrant was void because the underlying documents were improperly subscribed.

2. The search evidence should have been suppressed because the detective failed to file the sealed portion of his affidavit with the clerk of the trial court.

DISCUSSION

1. Trial court properly found search warrant documents had been validly subscribed.

Huerta contends the search warrant was invalid because the signatures on the subject document appear to be fraudulent, forged or are so lacking in effort to create consistency from signature to signature that the integrity of the document itself is open to question . . . . This claim is meritless.

Huerta asserts the issuing magistrates signatures on three of the search warrant documents do not resemble or match each other and that, on one of the documents he signed, Detective Alkadis only wrote his first name. Huerta argues this undermined the validity of the search warrant: [A] writing, under oath, subject to legal sanctions, is given effect upon a party subscribing to it. The act of subscription should therefore be open, transparent, unassailable, clear, consistent and apparent on its face.

He points out section 1538.5, subdivision (a)(1)(B), allows for the suppression of evidence if the warrant is insufficient on its face, and argues: Certainly . . . not to have the warrant properly subscribed renders the warrant insufficient on its face and evidence obtained pursuant to its execution subject to suppression. This raises the concomitant specter that the alleged subscribed did not read the document and related papers thereby vitiating probable cause for the issuance of the warrant. 

Huertas arguments are unavailing. Search warrants are presumed valid. (Franks v. Delaware (1978) 438 U.S. 154, 171 [There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.].) Here, the trial court found as a factual matter that the warrant had been legitimately subscribed, concluding it does not have any doubts as to the legitimacy or the origin of the warrant, and there is no issue of fabrication or anything like that, and so the court accepts the warrant in its form. We cannot say there was not substantial evidence to support that determination.^[2] Detective Alkadis fully explained why the defense had been given two different versions of the search warrant: one was a working copy the detective had faxed to the prosecutor from the detectives own computer, and the other was the actual search warrant signed by the magistrate. Alkadis testified the magistrate signed the search warrant in his presence.

Regarding Huertas assertion the magistrates several signatures were so dissimilar they raised authenticity questions, the Attorney General states, Should this Court elect to compare the signatures, it would likely come to the opposite conclusion, just as the trial court did. Moreover, to the extent [the magistrates] signatures are not identical, it is interesting that the signatures of [Huertas] trial counsel on his notice of appeal and the proof of service of his supplemental motion do not particularly resemble each other either.

We have examined the magistrates signatures and we find nothing that would undermine the trial courts authenticity finding. As suggested by the Attorney General, the magistrates signatures are less discrepant than trial counsels. That Detective Alkadis may have written only his initials or only part of his name does not raise an inference the document was forged, particularly when the writing is so obviously in Alkadiss hand.

2. Huerta has not been denied meaningful review of his suppression motion.

Huerta contends Detective Alkadiss failure to file the sealed portion of the search warrant affidavit with the clerk of the superior court prevented a meaningful review of the suppression motion. This claim is meritless.

A portion of the search warrant affidavit had been sealed to protect the identity of a confidential informant. (See People v. Hobbs (1994) 7 Cal.4th 948, 971 [all or any part of search warrant affidavit may be sealed to protect identity of confidential informant].) Alkadis retained this sealed portion, i.e., he did not file it with the superior court along with the other search warrant documents. However, he subsequently furnished the sealed portion to the trial court so it could rule on Huertas suppression motion. While acknowledging that Hobbs is silent on the issue of filing of the sealed affidavit with the clerk of the court, Huerta argues the instant case is identical to People v. Galland (2007) formerly at 146 Cal.App.4th 277 [52 Cal.Rptr.3d 799] (review granted Apr. 18, 2007),^[3]because [i]n Galland, as here, the officer retained the confidential information in the sealed search warrant affidavit instead of filing the material with the court clerk. Galland reversed the trial courts order denying the defendants motion to quash and traverse the search warrant and to suppress the evidence . . . .

But the only similarity between the case at bar and Galland is Alkadiss retention of the original Hobbsportion of the search warrant affidavit. In Galland, the Court of Appeal had ordered a rehearing on Gallands suppression motion because it appeared the trial court failed to review the Hobbs portion before upholding the warrant. On remand to the trial court, the parties stipulated the officer had stored the original warrant affidavit at the police department and subsequently brought that original to the remand hearing. But in the course of a second appeal,^[4]there were new developments that undermined the presumed validity of the search warrant affidavit: (1) it was revealed that the police department had destroyed the original warrant affidavit, (2) the district attorney delivered to the Court of Appeal an apparently unsigned version of the entire warrant affidavit, and (3) a previously undisclosed portion of the original search warrant documents was subsequently discovered in the trial courts file. This confluence of events led the Galland Court of Appeal to reverse the trial courts denial of Gallands suppression motion, saying: We have no confidence in the authenticity of the warrant affidavit included in the appellate record, or that the documents comprising the affidavit are the same documents the issuing magistrate actually reviewed. The trial courts failure to maintain a record adequate for appellate review . . . deprived Galland of due process of law. (People v. Galland, supra, [52 Cal.Rptr.3d at p. 801].)

In the case at bar, however, there is no question but that the trial court had before it the complete search warrant affidavit when it denied Lozanos suppression motion. Huerta was not denied meaningful review of his suppression motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] See People v. Lawler (1973) 9 Cal.3d 156, 160 (  A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court sitting as a finder of fact. [Citations omitted.] In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial courts findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.); People v. Manning (1973) 33 Cal.App.3d 586, 589-599, 601 (when reviewing suppression motion rulings appellate court function is limited to determining whether or not there is substantial evidence to support the ruling).

^[3] According to the Supreme Court, Galland includes the following issues: (1) Must confidential information in a sealed search warrant affidavit, which was reviewed by the trial court pursuant to People v. Hobbs (1994) 7 Cal.4th 948, be retained by the court rather than law enforcement in order to provide an adequate record for appeal? (2) Did the Court of Appeal properly invoke the exclusionary rule and suppress evidence obtained in execution of the search warrant as a sanction for the trial courts failure to retain the sealed affidavit although there was no evidence of police misconduct in obtaining or executing the warrant?

^[4] Which followed the remand, at which the trial court again denied Gallands motion to quash the warrant.