P. v. Lopez
Filed 8/26/13 P. v. Lopez CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOEL LOPEZ et al.,
Defendants and Appellants.
B242990
(Los Angeles
County
Super. Ct.
No. BA390627)
APPEAL from a judgment of the Superior
Court of
County. John Fisher,
Judge. Affirmed.
Lyn A.
Woodward, under appointment by the Court of Appeal, for Defendant and Appellant
Joel Lopez.
Christopher
Nalls, under appointment by the Court of Appeal, for Defendant and Appellant
Juan Jose Madrid.
No
appearance for Plaintiff and Respondent.
_______________________
Defendants Joel Lopez and Juan Jose Madrid appeal from
their conviction following no contest pleas to the charge of
after the trial court denied their joint motion to quash a search warrant. Following our independent review of the
record pursuant to People v. Wende
(1979) 25 Cal.3d 436, 441 (Wende),
we affirm both convictions.
We glean
the following facts from City of Cypress Police Detective
Scott Ausmus’s search warrant application and
support of the search warrant application, Ausmus recounted that undercover
officers surveilling the Macy’s parking lot at the Cerritos Mall in the early
evening on October 27, 2011,
observed a blue Nissan park next to a gold Toyota. Lopez and Madrid
got out of the Nissan. While the driver
stood by the Nissan’s trunk, the passenger walked towards Macy’s where he met a
woman. The woman and the Nissan
passenger walked to the Nissan. The
trunks of both the Nissan and the Toyota
opened. The Nissan passenger removed a
black nylon bag from the Nissan trunk and placed it in the Toyota
trunk, then got into the driver’s seat of the Toyota. The Nissan driver returned to the driver’s
seat of the Nissan and both cars drove away in separate directions. Officers continued surveilling both cars as
they were driven in an evasive manner (e.g. over the speed limit, unsafe lane
changes, etc.). Eventually the cab stopped
in the driveway of a single family residence on Summer Avenue in Norwalk.
When officers resumed surveillance
of the Summer Avenue residence November 1, both the Nissan and the Toyota
were parked at that location. Later, a
black two-door Acura pulled into the driveway.
The man who had previously been observed driving the Nissan got out of
the Acura’s passenger’s seat and entered the residence; the Acura’s driver
followed a minute later.
A DEA agent informed Ausmus that he
was familiar with the Acura seen at the Summer Avenue residence and that it had
a secret compartment used to transport illegal narcotics.
Officers resumed surveillance of
the Summer Avenue residence about 8:00 a.m.
the next day, November 2. About 4:15 p.m., Lopez and Madrid
left in the Acura. Officers followed as
the Acura pulled into parking lots at a gas station, a Kmart and a Carl’s
Jr. In the gas station and Kmart parking
lots, the Acura passenger got out of the car, looked around and then got back
into the car, which proceeded to the next parking lot. Ausmus characterized this as
counter-surveillance driving intended to elude police detection. In the Carl’s Jr. parking lot, the Acura
parked next to a white Ford Edge with paper license plates. The drivers of the Acura and the Ford met
each other inside the Carl’s Jr. while the Acura passenger remained in the car,
talking on a cell phone and looking around.
About five minutes later, the drivers returned to their vehicles and
both cars returned to the Kmart parking lot where they parked next to each
other. All three men got out of their
respective cars and transferred two large plastic bins from the Ford hatchback
to the Acura trunk. The men then
returned to their cars and drove away in separate directions. Officers followed the Acura back to the
Summer Avenue residence where it pulled into the garage and the garage door was
closed. In Ausmus’s opinion, two
narcotics transactions had occurred and the Summer Avenue residence was being
used as a “stash house.†A search warrant
issued for the Summer Avenue residence and the three cars (Nissan, Toyota and
Acura).
Immediately before executing the
warrant, officers observed Lopez in the Toyota and Madrid in the Nissan drive
away from the Summer Avenue residence.
Both men were stopped. Madrid was
found to be in possession of a large amount of U.S. currency, but no driver’s
license. Meanwhile, at the residence, in
a locked bedroom identified by Lopez’s wife as Madrid’s room, officers found
mail addressed to Madrid and a loaded semi-automatic handgun, which they seized. From under the house, accessible through a
trap door in a coat closet, officers seized 51 separately wrapped kilos of
cocaine and two money counters. From
elsewhere in the house officers seized 52 packages “appearing to be trash of
previous wrapped kilos,†packaging material and a black suitcase. A pickup truck with false compartments was
found in the garage.
Lopez and Madrid were jointly
charged with possession of cocaine for sale (count 1) (Health & Saf. Code,
§ 11351) and use of a false compartment to transport a controlled
substance (Health & Saf. Code, § 11366.8, subd. (a)) (counts 2 [the
Acura] and 4 [the pickup truck]); Madrid was also charged with possession of a
controlled substance with a firearm (Health & Saf. Code, §11370.1, subd.
(a)) (count 3); as to count 1, a weight enhancement was alleged as to both
defendants (Health & Saf. Code, § 11370.4, subd. (a)(5)) and a
personally armed enhancement (Pen. Code, § 12022, subd. (c)) was
alleged as to Madrid only.
Lopez and Madrid moved to quash, or
in the alternative traverse, the search warrant and suppress all evidence
obtained in the search. In opposition to
the motion to quash, the People maintained probable cause was established by
the totality of the circumstances, including information obtained from the DEA
agent about a secret compartment in the Acura, the counter-surveillance driving
and the two hand-offs. The trial court
denied the motion to quash. Finding no
basis to hold a Franks hearing
at that time, the court agreed to hear testimony relevant to the motion to
traverse during the preliminary hearing.
At the preliminary hearing,
Ausmus testified that he prepared the Statement of Probable Cause from his own
notes which sometimes reflected what other officers told him. After preparing the warrant application,
Ausmus destroyed his notes as he was trained to do; other than the warrant
application, Ausmus did not write any reports of the three day surveillance and
he did not believe any other officer did so. The trial court did not expressly
rule on the motion to traverse, nor did either defense counsel request a
ruling. Madrid’s subsequent Penal Code
section 995 motion to set aside the information for insufficiency of the
evidence was denied.
Lopez and Madrid each pled no
contest to possession of cocaine for sale and admitted a different weight
enhancement. The remaining counts were
dismissed. Both were sentenced to 12
years in prison.
We appointed separate
appeal. After examination of the record,
each appointed counsel filed a separate opening brief which contained an
acknowledgment that they had been unable to find any arguable issues and
requesting that we independently review the record pursuant to
that he had 30 days within which to personally submit any contentions or issues
which he wished us to consider. On
April 19, 2013, we gave an identical advisement to Lopez. Neither defendant has filed anything.
We have examined the entire record
and are satisfied that both appointed counsel have fully complied with their
responsibilities and that no arguable
issues exist vis a vis either defendant.
(Wende, supra, 25 Cal.3d
at p. 441.)
DISPOSITION
The
judgments are affirmed.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER,
J.
GRIMES,
J.
155-156 [where defendant makes substantial preliminary showing that a false
statement in the warrant affidavit led to finding of probable cause, Fourth
Amendment requires hearing at defendant’s request].
