Filed 10/30/14 P. v. Guillen CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067066
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF263380)
                   v.

ADAM GUILLEN,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. James W.
Hollman, Judge.

         Nuttall & Coleman, Roger T. Nuttall and Glenn M. Kottcamp for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *Before Levy, Acting P.J., Kane, J. and Peña, J.
       Defendant Adam Guillen entered a no contest plea to one count of possession of
child pornography (Pen. Code, § 311.11, subd. (a)) after his motion to suppress the
evidence against him was denied. As a result of his plea, the trial court sentenced him to
a term of five years of felony probation and ordered him to serve 180 days in custody.
On appeal he argues the trial court erred in denying his motion to suppress the evidence.
We affirm.
                                             FACTS1
       At the preliminary hearing, Porterville police officer Joe Echevarria testified he
was dispatched to Darrell Smith’s residence to allow his daughter, Jodie Guillen, to pick
up property belonging to her husband, defendant. Jodie and defendant had lived with
Smith at the residence for approximately one and a half years and were in the process of
moving out. Subsequently, Echevarria was told to contact Smith’s nephew, Robert
Spain. Spain related he, along with his wife and daughter, had been helping Smith clean
out the room occupied by defendant. While cleaning the room, Spain’s daughter located
a briefcase or small suitcase under the bed. Spain told Echevarria Smith did not want
defendant’s things at his home, so Spain had offered to keep the briefcase. Spain went
through the briefcase and discovered videos containing child pornography. Spain had
viewed the contents of the DVD’s in a “family setting” with “everybody” watching it.
       Spain’s daughter was dating an officer from the Porterville Police Department and
had informed him of the contents of the suitcase. He, in turn, informed Echevarria’s
supervisor, who instructed Echevarria to determine what was found in the suitcase.
Echevarria took possession of the disks and briefcase.
       Detective Matthew Green investigated the contents of the suitcase. It contained
magazines, DVD’s, CD’s, and portable media storage devices. Green obtained a search


       1As defendant entered a plea prior to trial and stipulated the preliminary hearing
transcript provided a factual basis for his plea, we will recount the facts as adduced at the
preliminary hearing.


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warrant and conducted a search of the contents. In addition to the pornographic material,
the suitcase also contained a letter addressed to defendant. Green found approximately
850 images of child pornography depicting females between the ages of five to 12 years
of age engaging in sexual acts. Green subsequently interviewed defendant, who admitted
to possessing the child pornography by downloading it from the Internet.
                                      DISCUSSION
                     The Motion to Suppress Was Properly Denied
       Defendant initially contends the trial court erred in denying his motion to suppress
because the prosecution failed to produce any evidence at the hearing on the motion to
suppress regarding the validity of Spain’s search of the suitcase. While we agree there
was a failure of proof in this case, we find it was defendant’s burden to establish the
impropriety of the initial search.
       Defendant moved to suppress the evidence against him, claiming “the affidavit in
support of the search warrant … was deficient.” As relevant to the issue presented on
appeal, defendant contended the suitcase had been turned over by Spain, “himself a
California law enforcement employee, but without any warrant or other legal authority to
do so. This was an illegal seizure by a gainfully employed California law enforcement
officer, subsequently improperly ratified later by the Porterville Police Department.”
Defendant appended a copy of the search warrant and the affidavit in support of the
warrant to his motion.
       The People opposed the motion, arguing initially the exclusionary rule was not
implicated here as the suitcase was not searched by a law enforcement officer.
According to the People, Spain’s employment as a “correctional officer does not make
him a ‘law enforcement officer’ performing a search.” Rather, Spain was simply “just
helping a relative clean out a room in his house.” Furthermore, the People argued
defendant’s motion to traverse the warrant should be denied as defendant had failed to




                                             3.
meet his burden to establish the affidavit contained a material omission that was made
knowingly, intentionally, or with a reckless disregard for the truth.
       At the hearing on the motion to suppress, the court first noted the case involved a
warrant and, as such, should be decided by the magistrate who had issued the warrant,
Judge Sevier. But both parties agreed Judge Hollman could hear the motion. After
commenting it had read the parties’ motions, the court asked counsel if they had an
“[a]dditional evidence or comments.” Defense counsel indicated she had additional
argument and argued Spain was a law enforcement officer, and even though he may have
searched the suitcase when he was off duty, he retained his law enforcement status “24
hours a day, seven days a week” and thus the search was illegal. The prosecutor
responded that Spain was acting solely as a private citizen and explained Spain was
“available for testimony today if the Court needs to hear from him about his intent and
whether or not he was in any way acting under the authority of his employment.” The
court explained it understood the issue and had read “the transcript and everything that’s
in the file” and found Spain was acting as a private citizen when he searched the contents
of the suitcase.
       On appeal, defendant challenges this ruling, but argues “the prosecution failed to
meet its burden [at the hearing on the motion to suppress], as the prosecution did not
present any evidence at all to justify the warrantless searches and seizures.” Defendant is
correct in his assertion the prosecution ordinarily bears the burden of establishing a
warrantless search was justified. (People v. Williams (1999) 20 Cal.4th 119, 127.)
However, unlike a warrantless search, a search pursuant to a warrant is presumed lawful,
therefore, the burden of establishing a warrant’s invalidity rests squarely upon the
defendant. (People v. Amador (2000) 24 Cal.4th 387, 393; Theodor v. Superior Court
(1972) 8 Cal.3d 77, 101; People v. Lazalde (2004) 120 Cal.App.4th 858, 865.) Here,
defendant attacked the validity of the warrant, claiming it was the product of an illegal




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search. Consequently, the burden of the initial production of evidence rested with the
defense. Indeed, as one court has explained:

       “Although the ultimate burden of persuasion that, in spite of the People’s
       acquisition of tainted leads or evidence, the evidence presented to the trier
       of fact is untainted is with the People, the initial burden of going forward
       with some evidence that illegal police conduct led to tainted derivative
       evidence, is with the accused. (Alderman v. United States, 394 U.S. 165,
       183.)” (People v. Demoray (1970) 5 Cal.App.3d 127, 131, italics added.)
       Indeed the United States Supreme Court has recognized that when arguing the
evidence from an illegal wiretap was unlawfully tainted, the “burden is, of course, on the
accused in the first instance to prove to the trial court’s satisfaction that wire-tapping was
unlawfully employed. Once that is established … the trial judge must give opportunity,
however closely confined, to the accused to prove that a substantial portion of the case
against him was a fruit of the poisonous tree. This leaves ample opportunity to the
Government to convince the trial court that its proof had an independent origin.”
(Nardone v. United States (1939) 308 U.S. 338, 341.)
       Applying the above principles it is apparent that, at a minimum, defendant was
required to produce evidence there was a prior search by a law enforcement officer
without a warrant and a causal link between that conduct and the evidence ultimately
recovered. (People v. Carson (1970) 4 Cal.App.3d 782, 785 [defendant, as moving party,
bears “the burden of supporting his motion by proof”].) Upon such a showing, the
burden would shift to the prosecution to either justify the search or demonstrate the
warrant was untainted by the initial search. However, there was a complete failure to
produce any evidence in this case on any unlawful conduct that led to the statements in
the affidavit. As there was never any evidence produced that Spain was in fact a law
enforcement officer, there simply was no evidence of a prior illegal search and, thus, no
basis to grant the motion. (Id. at p. 787 [“Absent any evidence whatsoever before the
court, the defendant movant was not entitled to have his motion under section 1538.5 …
granted” (fn. omitted)].)


                                              5.
       Defendant’s case on appeal rests upon the faulty premise that once he filed his
written motion to suppress, the burden of production of the evidence as well as the
burden of proof shifted to the People. However, it was defendant’s burden to establish
the facts of the antecedent search, demonstrating an unlawful search took place that
tainted the search warrant affidavit. (Accord, People v. Coleman (1975) 13 Cal.3d 867,
890-891, fn. 20 [“The defendant generally bears the burden of proving that some sort of
official misconduct has occurred” although the prosecution bears the “burden of proving
the legality of warrantless seizures and arrests as well as warrantless searches.” After
“the defendant meets this burden of ‘(going) forward’…, it is the prosecution’s burden to
prove either the attenuation of the taint of the primary illegality or the independent origin
of the prima facie-tainted evidence”]; People v. Carson, supra, 4 Cal.App.3d at p. 785
[defendant, as the moving party, bears “the burden of supporting his motion by proof”].)
       While defendant asserted in his motion that Spain was a correctional officer,
evidence of that fact is nowhere to be found on the record. At the hearing on the motion,
as defendant points out, no evidence was received. Spain was never called as a witness to
testify as to his employment, nor was there a stipulation between the parties that Spain
was, in fact, a law enforcement officer. In short, there was simply no evidence to support
defendant’s assertions.
       It is true defendant attached a copy of the affidavit for the search warrant to his
motion. Assuming the trial court considered the statements contained within the affidavit
as evidence, we note nothing in the affidavit established Spain was a law enforcement
officer. Likewise, it appears the trial court read and considered the preliminary hearing
transcript. However, a preliminary hearing transcript is inadmissible at a hearing on a
motion to suppress evidence absent a stipulation or an exception to the hearsay rule.
(Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 94.) Neither appears on the record
here. Even if we were to assume the parties stipulated to the use of the transcripts, a
review of the testimony reveals no evidence establishing Spain was a law enforcement


                                             6.
officer. Thus, there was simply no evidence before the court establishing there ever was
an antecedent search by a law enforcement officer that tainted the later warrant. As no
such evidence was presented, the trial court had no basis to grant the motion to suppress.
       We are aware of what appears to be a contrary holding in People v. Torres (1992)
6 Cal.App.4th 1324, but find that case distinguishable. In Torres, the defendants were
stopped for speeding and a subsequent consensual search of their car revealed they were
in possession of narcotics. Using this information, officers subsequently obtained a
warrant to search the defendants’ residence, located in a different county, where a large
quantity of cocaine was discovered. The defendants challenged the initial vehicle stop
and resulting search that took place in Los Angeles County. The court there found the
initial stop was without probable cause and suppressed the results of the vehicle search.
Subsequently, the defendants brought a motion to suppress evidence and quash and
traverse the search warrant that occurred in San Mateo County. At that hearing the court
received evidence regarding the initial vehicle stop and search. Additionally, the
prosecutor conceded the warrant was not supported by probable cause if the fruits of the
vehicle search were suppressed. (Id. at pp. 1327-1328.)
       The defendants’ main contention at the hearing on the motion to suppress was that
the warrant was defective “because the affiant officer filed it with intentional or
recklessly false statements regarding the existence of probable cause to stop and
defendants’ asserted consent to the [vehicle] search. Defendants only indirectly attacked
the warrant as the product of illegally obtained evidence.” (People v. Torres, supra, 6
Cal.App.4th at p. 1334.) As the defendants’ motion primarily attacked the statements in
the affidavit as false or misleading, it was treated as a motion pursuant to Franks v.
Delaware (1978) 438 U.S. 154. Pursuant to Franks, a defendant bears the burden of
producing evidence establishing statements contained within an affidavit in support of a
warrant are deliberately false or were made with reckless disregard for the truth.




                                             7.
Furthermore, the defendant bears the burden of establishing that excising these statements
results in an affidavit which is insufficient to support the warrant. (Id. at pp. 171-172.)
       Relying on the procedure set out in Franks, the trial court in Torres found the
defendant had failed to prove the statements contained within the warrant relating to the
initial vehicle stop were deliberately false or made with a reckless disregard for the truth.
(People v. Torres, supra, 6 Cal.App.4th at p. 1334.) The court never addressed the
threshold issue of whether the initial vehicle stop was justified. Torres found this error
was prejudicial as the court decided the issue on the more stringent Franks standard,
which delegates the burden of proof to the defendant rather than requiring the People to
justify the reasonableness of the initial vehicle stop and search.
       While at first blush it may appear Torres supports defendant’s position that the
People bore the burden of production of evidence here, it is important to note that in
Torres an evidentiary hearing was held in which evidence regarding the initial vehicle
stop and search was presented to the court. Thus, in Torres, the court had facts before it
that the initial seizure and search had been performed by law enforcement officers. But
unlike Torres, no evidence regarding a prior warrantless search by a law enforcement
officer was ever produced in this case. Thus, the trial court had no evidence before it
from which it could find an illegal search had taken place. Therefore, the ruling denying
the motion to suppress was proper.
                                      DISPOSITION
       The judgment is affirmed.




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