Filed 3/30/17 P. v. Rodriguez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

SAID RODRIGUEZ,

Defendant and Appellant.
D069231



(Super. Ct. No. JCF35055)

APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman and Diane B. Altamirano, Judges. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Said Rodriguez of possession of methamphetamine for sale (Health & Saf. Code, § 11378); possession of a smoking device (Health & Saf. Code,
§ 11364, subd. (a)); conspiracy to sell or transport a controlled substance (Pen. Code,
§ 182, subd. (a); Health & Saf. Code, § 11379) and being in a place where controlled substances were used (Health & Saf. Code, § 11365, subd. (a)).
The court sentenced Rodriguez to a split sentence consisting of one year in county jail followed by two years of mandatory supervision. On appeal, Rodriguez contends the court reversibly erred by denying his motion to suppress his confession because although he was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda), his confession was involuntary. Rodriguez also requests that we review the transcript of the sealed proceedings that Judge Altamirano conducted under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), for us to determine whether his motion to quash and traverse the search warrant was properly denied, the records were properly ordered sealed, appropriate questions were asked in camera, and the judge should have compelled disclosure of the confidential informant. We find no error and therefore affirm the judgment.
FACTUAL BACKGROUND
In June 2015, law enforcement officers pursuant to a warrant searched Nayley Velasquez's home in Calexico, Imperial County, where they found her and her infant son. Velasquez was Rodriguez's girlfriend, and the officers found in the residence Rodriguez's personal belongings, methamphetamine in a plastic container as well as a large Ziploc bag, plastic baggies commonly used for packaging drugs for sale, digital scales, black electrical tape, and drug paraphernalia. The officers detained Velasquez. Officers separately detained Rodriguez at the Calexico Port of Entry and took him to Velasquez's residence before transporting him for a taped interview with two officers at the Law Enforcement Coordination Center (LECC), which is akin to a police station.
At the start of his interview, Rodriguez asked the interviewers why Velasquez was also brought to the LECC. An officer told him, "I don't know. You'd have to ask the case agent that." When Rodriguez asked a second time, an officer told him, "It's the place, bro. The place for—where we found all the stuff at. I'll explain that to you right now. Okay?" An officer advised Rodriguez of his Miranda rights and Rodriguez agreed to speak to them. The interview was conducted in both Spanish and English. Rodriguez told them, "I'm just keep[ing] . . . the thing" or "tak[ing] care of" the materials the officers had found in a small box at Velasquez's home. Rodriguez also claimed ownership of a black bag found in Velasquez's home. Rodriguez admitted he and Velasquez also had been using some of the methamphetamine. When asked where the methamphetamine came from, Rodriguez stated that "Ramon" from Mexicali gave it to him at the Mexico-United States border, and Rodriguez later gave it to another man called "Chino." Rodriguez stated he was paid approximately $30 dollars for each ball of methamphetamine. Rodriguez denied selling drugs. The officers urged him to speak truthfully, and he said, "I'm screwed anyways, huh?" Rodriguez denied owning the two scales found in the house, adding, "even if I—I plead or tell you 'no' (unintelligible) you already have it there as proof so I'm not going to be able to take that away from you."
This colloquy ensued between two officers and Rodriguez:
"[Officer 1]: . . . [L]ike my partner said you—you are making fun of us like saying that no—that the—you—that you gift [the methamphetamine] that you trade it. At the end we know what's up, I mean, we are giving you the opportunity to be honest. Be honest because honesty well—the—the—the judges see it and . . .
"[Officer]: Honesty goes a long way.
"[Officer 1]: [A]nd it can be—it can be that give you a—a—a chance there. But if it's the other way . . .
"[Officer]: Because how it's looking now, I'm taking you in with charges and [Velasquez].
"[Rodriguez]: Oh, no (unintelligible) I told you it's like I . . .
"[Officer]: Look, no—no hold on.
"[Rodriguez]: . . . all—all—all—everything is mine, I mean, everything is mine, I mean no—[Velasquez] doesn't—nothing to do with nothing to do here. Actually . . .
[Officer]: But lo—look, what you're telling me is nothing, [Rodriguez]. There's nothing I—[Velasquez] was in the house, you—you were there. You said at first you weren't there. But now we know that you were there because we found it. There were personal belongings of yours, there were letters, le—there was everything that you were living there.
"[Rodriguez]: Mm-hm.
"[Officer]: Right? Now you're not going to—not giving me anything. And from that I—I'm gonna' just cut it and just take you guys in. You haven't given me anything.
"[Rodriguez]: What do you want—well what do you want to know? Or what—what do you want me to tell you?
"[Officer 1]: Just the truth."
The officers continued asking Rodriguez about his involvement in the drug sales, and challenging his account of his earnings, but Rodriguez did not provide any meaningful response:
"[Rodriguez]: "[T]hat's why if—that's why I tell you, [w]hat do you want me to tell you, man, so that you don't take [Velasquez]?
"[Officer]: "No—no—no. I just wanna' know the truth, that's it. Just tell me exactly what's going on.
"[Rodriguez] "But if—if—but I'm telling you, that's why—if I say the truth—the truth about everything, uh, are you going to get [Velasquez] . . . ?
"[Officer]: "I'm pretty close, yeah. I—I—I mean, I'm not gonna' give you [one hundred percent] but I just wanna' know exactly what's going on.
"[Rodriguez]: "But it's that—but she—she has nothing to do with it, I mean, what crime did she commit?
"[Officer 1]: "[Velasquez] has her own problems. She has her problems for also having the boy there and u—using drugs, I mean, those are other things that we're also seeing. Okay? There are problems. I'm not going to tell you that no—no—that she's innocent. But she has her problems. But, I mean, at the end it's what the lawyers read and say, you know what? Okay, he's guilty and she, well, has lesser problems but . . . ."
The officers again asked Rodriguez, "How are you working?" Rodriguez then disclosed that someone named Eduardo would call and tell him to pick up Ramon at the border, and Rodriguez was paid $150 for each packet that he picked up. Rodriguez would take Ramon to the house, leave his things there, and upon his return, Rodriguez would accompany Ramon to the Greyhound station. Rodriguez also admitted he sold drugs and earned approximately $100 in a slow week. After an officer stated they would take a break in the questioning, Rodriguez asked if everything was going to be okay with Velasquez. The officer replied that he would shortly bring Velasquez for Rodriguez to see her. The taped interview ended at that point.
In September 2015, Rodriguez moved in limine to suppress his confession, arguing in part that the law enforcement officers had violated of his Miranda rights by promising him they would not charge Velasquez with crimes of drug possession, thus rendering his waiver of his Miranda rights involuntary. After a hearing in which Rodriguez and two officers testified and both counsel argued, the court denied Rodriguez's motion: "It seems to me—in fact, the transcript [of the officers' interview with Rodriguez] is pretty clear that initially [Rodriguez] said, 'Hey, what is [Velasquez] doing here?" And the officers respond. [Rodriguez] never says, 'Wait a minute. You guys promised that you'd let her off the hook if I took responsibility.' He never says that throughout this interview. [¶] Clearly I think [Rodriguez] is concerned about the fate of [] Velasquez, but that's his desire, that she be let off the hook, so to speak. But [his] desire to curry favors with the . . . officers does not amount to the officers making a promise of leniency. And that's the issue here, that the officers made a promise of leniency. And I'm convinced that they did not. [¶] In fact, what is interesting about the interview is [Rodriguez] is really quibbling with the officers about his involvement in the case. I mean, if his version is true, you would think that once they sit down and talk to him he would deliver himself up on a silver platter, so to speak. 'Yes, I did. Yes, I was selling.' But he's quibbling with them throughout this interview. Officers are admonishing, 'Tell the truth.' 'Tell the truth.' He's not accepting responsibility, which then is contrary to his version of events, which is that he gave them a confession because he wanted to secure the release of [] Velasquez. I'm satisfied the officers never made him that kind of a promise and the statement is voluntary."
DISCUSSION
I.
Rodriguez contends we must reverse the judgment because the court erred in denying his suppression motion. He argues he had confessed in return for the officers' implied promise of leniency towards Velasquez: "It was clear from all the surrounding circumstances that [Rodriguez] had seen his girlfriend brought out from the apartment in which she and her baby lived, in handcuffs, and he had been told drugs were found in the apartment, long before his taped admissions. Furthermore, in the interview, his most damaging admissions by far came after he and the agent discussed the possible fate of his girlfriend. [He] asked specifically what the agents needed, and how it would 'work' with him taking blame and helping his girlfriend."
A. Applicable Law
" 'An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation].' [Citation.] 'Under both state and federal law, courts apply a "totality of circumstances" test to determine the voluntariness of a confession.' [Citation.] '[C]oercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment.' [Citation.] '[T]he question in each case is whether the defendant's will was overborne at the time he confessed. [Citations.] If so, the confession cannot be deemed "the product of a rational intellect and a free will." ' [Citation.] The burden is on the prosecution to show by a preponderance of the evidence that the statement was voluntary. [Citation.] 'When, as here, the interview was [recorded], the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court's determination of voluntariness.' " (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1400-1401.)
"In evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.] The question is whether the statement is the product of an ' "essentially free and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his capacity for self-determination critically impaired" ' by coercion. [Citation.] Relevant considerations are ' "the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health." ' " (People v. Williams (2010) 49 Cal.4th 405, 436.)
" 'In assessing allegedly coercive police tactics, "[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." ' " (People v. Williams, supra, 49 Cal.4th at p. 436.) "It is well settled that law enforcement may confront a witness with what they know. [Citation.] They may also discuss any advantages that ' "naturally accrue" ' from making a truthful statement. [Citations.] They may explain the possible consequences of the failure to cooperate as long as their explanation does not amount to a threat contingent upon the witness changing her story. [Citations.] They may even engage in deception as long as it is not of a type 'reasonably likely to produce an untrue statement.' " (People v. Quiroz (2013) 215 Cal.App.4th 65, 79.)
" 'Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise . . . does not . . . make a subsequent confession involuntary.' " (People v. Dowdell, supra, 227 Cal.App.4th at p. 1401.) As the California Supreme Court concluded in People v. Holloway (2004) 33 Cal.4th 96, suggestions a defendant might benefit in an unspecified manner from giving a truthful account do not cross the fine line between permissibly "factually outlining the benefits that may flow from confessing" and impermissibly "impliedly promising lenient treatment in exchange for a confession." (Id. at pp. 117, 115.)
B. Analysis
We conclude Rodriguez has not established the court erred by denying his suppression motion, or that the officers impliedly offered him leniency for Velasquez in exchange for his confession, which was given after the "turning point" in the interview when the officers said, "Because how its looking now, I'm taking you in with charges and her." Although it is true that Rodriguez disclosed more information after the officer made that statement, there is no indication of any implied leniency. The officers repeatedly told Rodriguez they wanted him to tell the truth or be honest. Far from making any promise, they specifically informed him that Velasquez had her own problems related to using methamphetamine while having a child in the house. They also stated that they were not one hundred percent certain whether charges would be filed against Velasquez; rather, the lawyers would make that determination. Rodriguez does not point to evidence in the record showing that the factors identified in People v. Williams, supra, 49 Cal.4th 436 contributed to a coercive confession. The record does not bear out Rodriguez's claim that his "free will was demonstrably overborne, by agents who used his repeatedly expressed concern for his girlfriend, who he did not wish jailed, and separated from her infant son, to get himself in deeper and deeper hot water."
II.
Rodriguez requests this court conduct an independent review of the in camera proceedings and sealed affidavit supporting the search warrant to determine if the trial court erred in denying his motion to unseal the affidavit, traverse and quash the warrant, and suppress his confession.
A. Background
In August 2015, Rodriguez moved to quash and traverse the search warrant based on the sealed affidavit and to suppress evidence, and requested a hearing under People v. Hobbs, supra, 7 Cal.4th 948. He argued "the affidavit in support of the [search] warrant failed to contain sufficient probable cause for its issuance and was defective by the omission of certain material facts and the inclusion of certain false statements."
The court held proceedings in camera and afterwards stated in open court: "The Court reviewed the confidential attachment, application for order and sealing of the confidential attachment, and the affidavit in support of the search warrant, along with the investigative report. Based on that review, the Court is going to deny both motions to quash and the traverse because for the motion to quash, the affidavit provides probable cause for the warrant. And then for the traverse, the court finds no inconsistencies, falsehoods or omissions in any of the documents that the court mentioned." The court added, "With regard to the confidential informant, I do find there is sufficient grounds for maintaining confidentiality of the informant's identity, and that the affidavit was properly sealed in whole because the confidential informant is not a material witness to the crimes alleged in the complaint, is also not a percipient witness to the crimes alleged in the complaint, is not an active participant in the crimes alleged in the complaint, and would also not provide any exculpatory evidence with regard to the crimes that are alleged in the complaint." The court kept the identity of the confidential informant sealed for safety concerns.
B. Applicable Principles
Under Hobbs, "[o]n a properly noticed motion by the defense seeking to quash or traverse [a] search warrant" where any portion or all of the search warrant affidavit has been sealed, "the lower court should conduct an in camera hearing . . . . It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Hobbs, supra, 7 Cal.4th at p. 972, fn. omitted.)
"If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit . . . . Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made 'knowingly and intentionally, or with reckless disregard for the truth,' and (2) 'the allegedly false statement is necessary to the finding of probable cause.' " (Hobbs, supra, 7 Cal.4th at p. 974.)
"If the trial court determines that the materials . . . before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse." (Hobbs, supra, 7 Cal.4th at p. 974.)
"[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], the court should proceed to determine whether, under the 'totality of the circumstances' presented in the search warrant
affidavit . . . , there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] In reviewing the magistrate's determination to issue the warrant, it is settled that 'the warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.' " (Hobbs, supra, 7 Cal.4th at
p. 975.)
"If the court determines, based on its review of all the relevant materials, that the affidavit . . . furnished probable cause for issuance of the warrant . . . [citation], the court should simply report this conclusion to the defendant and enter an order denying the motion to quash." (Hobbs, supra, 7 Cal.4th at p. 975.) "In all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant application for possible appellate review." (Ibid.) On appeal, we review the trial court's ruling for abuse of discretion. (See Hobbs, supra, at p. 976.)
C. Analysis
Having reviewed the transcript of the in camera proceedings and the sealed and unsealed portions of the search warrant affidavit, we conclude that the court did not abuse its discretion. It correctly determined that the confidential portion of the affidavit was properly sealed. It also correctly determined that there was nothing to suggest any material misrepresentations or omissions were made by the affiant, and that the affidavit set forth sufficiently reliable and competent evidence to support the magistrate's finding of probable cause to issue the warrant. Accordingly, the court properly denied Rodriguez's motion.


DISPOSITION
The judgment is affirmed.



O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


NARES, J.