P. v. Lozano

Filed 10/4/07 P. v. Lozano CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge. Affirmed.

Law Offices of Walter R. Urban and Walter R. Urban for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

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This appeal follows a guilty plea. An information charged defendant Macario Lopez Lozano with possession of methamphetamine for the purpose of sale (Health & Saf. Code, 11378), possession of a controlled substance while armed with a firearm (Health & Saf. Code, 11370.1, subd. (a)), and transporting a controlled substance (Health & Saf. Code, 11379, subd. (a)). It was alleged the amount of methamphetamine possessed exceeded one kilogram (Health & Saf. Code, 11370.4, subd. (b)(1)), a principal was armed with a firearm (Pen. Code, 12022, subd. (d)), and defendant was personally armed with a firearm (Pen. Code, 12022, subd. (c)). Codefendants Noel Santa Cruz and Mario Flores Santa Cruz were also charged in the information, but they are not parties to this appeal.

After the trial court denied defendants motion to compel the disclosure of the police informants identity used in connection with defendants arrest, defendant withdrew his not guilty plea and entered guilty pleas to the three charged offenses. The trial court imposed a six-year prison sentence, consisting of a two-year lower term for the Health and Safety Code section 11370.1, subdivision (a) offense, plus a one-year enhancement under Health and Safety Code section 11370.4, subdivision (b)(1), and a three-year enhancement under Penal Code section 12022, subdivision (c). Concurrent terms were imposed for the remaining two counts.

In his timely notice of appeal, defendant purported to appeal from the denial of his suppression motion and to challenge the validity of his plea. Neither issue, however, is raised in his appeal. Defendant also sought a certificate of probable cause to appeal the denial of his motion to disclose the informants identity and his motion to set aside the information pursuant to Penal Code section 995. The trial court granted the request. In his appeal, defendants sole contention is that the magistrate prejudicially erred in denying his discovery motion, whichhe assertsresulted in a violation of his federal constitutional rights to due process and to confront adverse witnesses. As we explain, defendants guilty plea bars appellate review of the denial of his motion to disclose the informants identity.

PROCEDURAL AND FACTUAL BACKGROUND

Defendants preliminary hearing took place over four days in April 2006. We briefly summarize the testimony at that hearing to place the relevant procedural matters in context. Detective Robert Del Rio testified concerning a narcotics arrest in the late afternoon of December 16, 2005, in Downey. Two motorcycle officers had been instructed to conduct a traffic stop of a burgundy Honda Civic containing defendant and his two codefendants. Officer Hano searched the Civic and found a shopping bag containing approximately five pounds of methamphetamine in the back seat, approximately $16,480 cash in the trunk, and a handgun in defendants possession. The police impounded the Civic. A vehicle search on February 7, 2006, uncovered additional cash in a pair of pants, along with a large amount of methamphetamine in a hidden compartment.

Detective Del Rio had instructed an informant and an undercover police officer to deliver the narcotics for sale to defendant and his codefendants approximately five minutes prior to the arrest. The informant approached the Civic, received a $32,000 payment from codefendant Santa Cruz, and delivered the methamphetamine. The methamphetamine recovered at the time of arrest was the same contraband the police had provided to the informant for the purpose of the controlled narcotics transaction. The informant received a payment from the police for his services.

During the preliminary hearing, there were references to the prior filing of a suppression motion and a discovery motion seeking disclosure of all prosecution witnesses. Neither motion, however, is part of the appellate record. During the hearing itself, the magistrate granted defendants oral motion to have the prosecution produce the police report and related documents concerning the underlying arrest and the informants role therein. However, the magistrate ruled that Detective Del Rio properly invoked the statutory privilege against disclosing the informants identity and specified that the prosecution was permitted to redact the informants name and other identifying information.^[1] In response, the prosecution produced a police report dated December 29, 2005. The magistrate also ordered the prosecution to produce documentary evidence concerning the payment made by the police to the informant. The prosecution did so.

At the conclusion of the preliminary hearing, the magistrate denied the suppression motion concerning the evidence recovered at the time of arrest, but found inadequate evidence to proceed against the vehicles passengers as to the contraband found in the hidden compartment during the subsequent search of the impounded vehicle. Defendant was held to answer for violations of Health and Safety Code sections 11378, 11370.1, subdivision (a), and 11379, subdivision (a).

On July 25, 2006, approximately two months after the information was filed and defendant entered his not guilty pleas, defendant filed a motion to compel discovery, including discovery regarding defendants role in the offense as provided to the prosecution through a confidential informant. At the same time, defendant moved to set aside the information on the grounds (1) there was insufficient evidence that defendant was aware that the bag exchanged by the informant contained narcotics and (2) defendants arrest was the product of illegal police entrapment. The prosecution filed an opposition to the discovery motion, construing it as seeking disclosure of the informants identity and contending defendant had failed to establish the prerequisite for compelled disclosurethe informants materiality. At the hearing on September 21, 2006, the trial court denied the motion to set aside the information and the discovery motion.^[2]

Defendants change of plea hearing took place the following day. The trial court and defendant reached a proposed disposition of the matter over the prosecutions objection. Defendant was advised ofand said he understoodthe charges and special allegations against him, along with the proposed sentence of six years. He was also advised of his constitutional trial rights, including the right to confront and cross-examine the witnesses against him. Defendant said he understood those rights, waived them, and entered guilty pleas as to the charged offenses and admitted the special allegations. Defense counsel joined in the waivers and stipulated to a factual basis for the pleas based on the preliminary hearing transcripts and the police reports. The trial court found a factual basis for the pleas and that the waivers were knowingly, intelligently, and voluntarily made. Sentence was imposed consistent with the proposed disposition and waivers.

DISCUSSION

As the Attorney General points out, well-established precedent makes clear that a guilty plea bars an appellate contention that the trial court improperly denied a defendants motion to disclose the identity of an informant to assist in establishing the defendants innocence of the charged offenses. (People v. Collins (2004) 115 Cal.App.4th 137, 148; see also People v. Hobbs (1994) 7 Cal.4th 948, 955, 957, fn. 1; People v. Hunter (2002) 100 Cal.App.4th 37, 42.) An order denying a motion to disclose the identity of an informant is not subject to review on appeal after the defendant has entered a plea of guilty [citation]. This is so because the purpose of the motion relates solely to the defendants guilt or innocence, an issue which is removed by the guilty plea. (People v. Castro (1974) 42 Cal.App.3d 960, 963.) Obviously, through his guilty pleas, defendant admitted his guilt on the charged offenses. Our courts have found it mutually inconsistent to admit committing the charged offenses and then question the judgment on the ground that evidence he was not permitted to discover would have established to the contrary. (People v. Collins, supra, 115 Cal.App.4th at p. 148.) That is the case here.

It is also well established that the trial courts improper issuance of a certificate of probable cause authorizing the appeal of the discovery ruling is of no moment. A certificate of probable cause cannot render reviewable a claim that is otherwise not cognizable on appeal from a guilty plea. [Citations.] (People v. Collins, supra, 115 Cal.App.4th at p. 149; see also People v. Castro, supra, 42 Cal.App.3d at pp. 964-965.)

Nor is this a situation in which the denial of the discovery motion was so intertwined with litigating the appealable ruling on the suppression motion that the former may be reviewed pursuant to our jurisdiction under Penal Code section 1538.5, subdivision (m) to review the latter. (People v. Collins, supra, 115 Cal.App.4th at pp. 141, 151.) In Collins, the informant issue was the primary basis on which the defendant sought suppression of evidence. Here, in contrast, the motion to disclose was brought after denial of the suppression motion, and nothing in the record indicates that the informants identity had any significant bearing on the suppression motion. To the contrary, the record shows that disclosure was sought to bolster defendants potential entrapment defense.

Defendants attempt to characterize his claim as a violation of his constitutional right to confront witnesses does not alter our conclusion that his guilty plea bars appellate review. Disclosure is generally required under the Constitution when the informant is a material witness. (See Roviaro v. United States (1957) 353 U.S. 53, 60-61; People v. Hobbs, supra, 7 Cal.4th at p. 959.) An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant, and it is defendants burden of producing evidence in that regard. (People v. Lawley (2002) 27 Cal.4th 102, 159-160.)

As such, it is clear that defendant was entitled to compel the disclosure of the informants identity only to the extent the informants testimony related to the defendants guilt or innocencethe issue defendant removed by his guilty plea. Moreover, as the Attorney General notes, defendant knowingly and voluntarily waived his constitutional right to confront witnesses at the time he entered his guilty pleas, rendering his appellate claim doubly inconsistent.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] During the hearing, the magistrate made it clear that he had denied the defense discovery request to the extent it sought disclosure of the informants identity. The magistrate ordered the prosecution to produce the evidence otherwise identified in the defense motion. The prosecutor represented that he had complied with that order and made his file available to the defense. On appeal, defendant does not identify any information other than the informants identity that was not produced.

^[2] Although defendants discovery motion was framed in general terms, nothing in the record indicates that the prosecution had additional potentially discoverable information beyond the informants identity. The trial court considered the motion as being directed solely to the disclosure of the informants identity.