Filed 2/10/17 P. v.

Peterson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C076637

Plaintiff and Respondent, (Super. Ct. No. 13F00293)

v.

MICHAEL PETERSON,

Defendant and Appellant.

A search by police led to the seizure of drugs, weapons, ammunition, and other
items from defendant Michael Peterson. A complaint deemed an information charged
defendant with various drug and weapons charges. Defendant filed multiple motions to
quash the search warrant, which the court denied. Defendant withdrew his not guilty
pleas and entered a negotiated plea of nolo contendere on one count. Sentenced to two
years, defendants sentence was deemed served based on time credits. Defendant
appeals, arguing the court retained jurisdiction to hear the later motion to quash, the court
had jurisdiction to modify its earlier order, and we should review the sealed affidavit to
ascertain whether the trial court erred in refusing to disclose the identity of the informant

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and in denying defendants motion to quash the search warrant. We shall affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2013 a complaint deemed an information charged defendant with count
one, possession of heroin and methamphetamine while armed (Health & Saf. Code,
11370.1, subd. (a)); count two, possession of heroin (Health & Saf. Code, 11350,
subd. (a)); count three, possession of methamphetamine (Health & Saf. Code, 11377,
subd. (a)); count four, possession of ammunition by a person prohibited from possessing
a firearm (Pen. Code, 30305, subd. (a)(1)); count five, felon in possession of a firearm
(Pen. Code, 29800, subd. (a)(1)); count six, possession of a silencer (Pen. Code,
33410); and an additional unnumbered count added during the preliminary hearing, a
violation of Health and Safety Code section 11351, subdivision (a). The information also
alleged defendant committed count one in violation of Health and Safety Code section
11370.1, subdivision (a) while released from custody on a primary offense.1 Defendant
entered a plea of not guilty.
The trial court provided counsel with a redacted search warrant that masked the
identity of the informant. The warrant was executed on January 10, 2013, in Sacramento.
A confidential informant had advised the police department that an individual matching
defendants description was selling heroin from an address reported as 2366 Belcot Road,
but the actual address was 2366 Cottage Way2.

1 All further statutory references are to the Penal Code unless otherwise designated.
2The house was at the corner of Cottage Way and Belcot Road and this created some
confusion as to whether it had a Belcot Road or Cottage Way address; the Cottage Way
address was correct.

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 Defendant had been previously arrested at that address on December 30, 2012, for
possession of heroin and methamphetamine, in Sacramento County case No. 13F00025.
Codefendant Cecilia Peralez was also connected to the Cottage Way address.
Pursuant to the warrant, officers seized various items to include psilocybin,
methamphetamine, Vicodin pills, heroin, digital scales with narcotics residue,
ammunition, a .44-caliber revolver, a silencer, a night-vision monocle, and a bulletproof
vest.
In August 2013 defendant filed a motion to traverse and quash the search warrant
and to suppress evidence under section 1538.5. The court denied the motion, finding:
[T]here is adequate probable cause contained in the entirety of the warrant that I have
reviewed. There are portions that Im not going to release, as I think that the basis for it
not being released is justified under these circumstances. []. . .[] There is information,
that taken in its totality supports the issuance of the warrant. [] I will candidly say any
judge reviewing this case in its entirety and the entire warrant that was submitted, I
believe would have issued the warrant. The court also noted the discrepancy between
the address on the warrant, 2366 Belcot Road, and the accurate address, 2366 Cottage
Way: In spite of that, I will call inaccuracy, there was sufficient probable cause to issue
a warrant. Defendants counsel later declared a conflict of interest and new counsel was
appointed.
In April 2014 defendants new counsel filed a renewed motion to traverse and
quash the warrant and to suppress evidence under section 1538.5. The People opposed
the motion, challenging defendants right to bring a renewed motion under section
1538.5, subdivision (i). The court denied the second motion, finding it lacked
jurisdiction. The court explained: I have read the pleadings and some of the case law
cited by Counsel, and it appears to me that the defense has not presented grounds -- and
theyre fairly narrow grounds -- that would allow this Court to have jurisdiction to hear
the additional motion to suppress. And then I dont get to the traverse unless the motion

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to suppress is granted, so lets talk about that. [] So I think I lack jurisdiction, and the
proper way to proceed is either for the defense to go through the extraordinary writ
process or to file a motion at trial. [] . . . I do not have jurisdiction to hear it at this
time.
Defendant withdrew his not guilty plea and entered a negotiated plea of nolo
contendere on count one with a term of two years. His sentence was deemed served
based on the calculation of time credits, and he was released on his own recognizance
with orders to report to either parole or postrelease community service. Case
No. 13F00025 and the remaining six counts in the present case, Sacramento County case
No. 13F00293, were dismissed pursuant to the plea. Defendant filed a timely notice of
appeal in case No. 13F00293.
DISCUSSION
I
Defendant argues the trial court retained jurisdiction to consider the second motion
to suppress under section 1538.5, subdivision (i). However, defendants argument
pertains in large part to case No. 13F00025, which was dismissed as part of defendants
plea bargain in case No. 13F00293. Defendant did not file a notice of appeal in case
No. 13F00025.
In a footnote, defendant acknowledges the lack of a notice of appeal but contends:
Should an issue arise regarding cognizability of any argument herein based on the
absence of a notice of appeal in No. 13F00025, [defendant] requests the court deem the
notice of appeal in No. 13F00293 to include an appeal in No. 13F00025. [Citations.]
Defendant also cites California Rules of Court, rule 8.304(a)(4), which provides the
notice of appeal must be liberally construed.
Defendant fails to provide any other basis for us to include case No. 13F00025 in
the current case on appeal. Although the People moved for consolidation of the two
cases at the preliminary hearing, the court denied the motion. The court stated

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consolidation would not be fair to Ms. Peralez to combine those two cases. They
occurred at separate times. One appears to be -- it would be prejudicial to her, I believe,
to have some of these other charges and evidence come before the jury. Defendant
asserts, The court denied the motion [to consolidate] because it would be unfair to
Peralez, and not for any reason advanced by [defendant]. Why the court denied
consolidation does not change the fact that the two cases were not consolidated and
remained separate.
Defendant takes issue with whether the cases did remain separate, arguing that
they were combined at various hearings, demonstrating the reality that the two actions
were inextricably intertwined. We disagree.
Defendant claims the trial court considered the motions to suppress in the two
cases at the same hearing. However, the trial court conducted two separate hearings on
defendants motions. In the morning, the court heard and denied the motion in case
No. 13F00025. In the afternoon, the court heard and denied the motion in case
No. 13F00293. In the latter, defendant challenged the search warrant and requested the
court conduct an in camera review of the affidavit to determine whether information in
the warrant was necessary to ensure the defense could properly challenge the probable
cause supporting the warrant. In light of this background, we consider defendants
arguments without reference to case No. 13F00025.
II
As a general rule, a defendant is allowed only one pretrial suppression motion
under section 1538.5 in the superior court, and that court is without jurisdiction to hear a
second motion. [Citations.] A second suppression motion may be brought at trial, only
upon the narrow grounds that, at the initial motion made before trial, opportunity for [the
new] motion did not exist or the defendant was not aware of the grounds for the
motion . . . . ( 1538.5, subd. (h); [citations].) (People v. Nelson (1981)
126 Cal.App.3d 978, 981, fn. omitted.) For example, if there occurred an intervening

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change in the applicable law or the discovery of new evidence in support of suppression,
the trial court could entertain a new motion based on such grounds. (People v. Superior
Court (Edmonds) (1971) 4 Cal.3d 605, 611.) The single suppression hearing rule does
not apply when the trial court applied an erroneous legal standard in its original ruling.
(People v. Ramirez (1992) 6 Cal.App.4th 1583, 1590.) Nor does it apply when a
conviction is reversed on grounds of ineffective assistance of counsel infecting the initial
suppression hearing. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 200.)
None of these exceptions applies in the present case. On appeal, defendant argues
the trial court erred because he allegedly obtained evidence that challenged investigating
officer Darby Lannoms version of events in case No. 13F00025. However, the officer in
question did not testify in the present case, case No. 13F00293.
In the present case, in the affidavit in support of the search warrant Detective Ryan
Oliver stated he relied on information from Officer Lannom that defendant had been
arrested for possession of heroin and methamphetamine on December 30, 2012, that
defendant resided at 2366 Cottage Way, and that the residence was equipped with
security cameras. The affidavit was supported by information from a confidential
informant, who stated defendant was selling heroin. The trial court correctly determined
it lacked jurisdiction to hear defendants second motion to suppress pursuant to section
1538.5.
III
Defendant also argues the trial court had discretion to modify its earlier order
pursuant to Code of Civil Procedure section 128, subdivision (a)(8). Under defendants
theory, the Peoples offer of proof in case No. 13F00025 was that Officer Lannom had
confused the searchable probationers address. Therefore, the court should have
exercised its discretion to amend its prior order to conform to law and justice.
Code of Civil Procedure section 128, subdivision (a)(8) provides, in part:
(a) Every court shall have the power to do all of the following: [] . . . [] (8) To amend

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and control its process and orders so as to make them conform to law and justice. An
appellate court shall not reverse or vacate a duly entered judgment upon an agreement or
stipulation of the parties unless the court finds both of the following: [] (A) There is no
reasonable possibility that the interests of nonparties or the public will be adversely
affected by the reversal. [] (B) The reasons of the parties for requesting reversal
outweigh the erosion of public trust that may result from the nullification of a judgment
and the risk that the availability of stipulated reversal will reduce the incentive for pretrial
settlement.
Again, defendants argument is based on testimony in case No. 13F00025. That
testimony is not at issue in the case before us and we find Code of Civil Procedure
section 128, subdivision (a)(8) inapplicable.
IV
Finally, defendant requests that we review the sealed affidavit to ascertain whether
the trial court erred by refusing to disclose the identity of the informant and denying the
motion to quash the search warrant and to suppress the evidence seized in the January 10,
2013, search. The People join in the request.
In his first motion to suppress evidence and to quash and/or traverse the search
warrant, defense counsel made a Hobbs motion,3 seeking review of the sealed search
affidavit under People v. Luttenberger (1990) 50 Cal.3d 1. Such a motion requires the
trial court to conduct an in camera hearing pursuant to Evidence Code section 915,
subdivision (b). The court first determines whether sufficient grounds exist for
maintaining the confidentiality of the informants identity. It then determines whether
the entirety of the affidavit or any major portion is properly sealed. (Hobbs, supra,

3 People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).

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7 Cal.4th at p. 972.) The court possesses the discretion to call and question the affiant,
the confidential informant, and any other witness deemed necessary. (Id. at p. 973.)
Following the in camera examinations, the trial court evaluates the motion to
traverse: 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
defendants general allegations of material misrepresentations or omissions are supported
by the public and sealed portions of the search warrant affidavit, including any testimony
offered at the in camera hearing. 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. [Citation.]
If the trial court determines that the materials and testimony before it do not
support the defendants charges of material misrepresentation, the court should simply
report the conclusion to the defendant and enter an order denying the motion to traverse.
(Hobbs, supra, 7 Cal.4th at p. 974.)
Here, the trial court followed this procedure and concluded it could not unseal any
additional portion of the search warrant. As requested by the parties, we have reviewed
the sealed affidavit under the procedure outlined in Hobbs. Based on our review, we find
it not reasonably probable that defendant could have prevailed on a motion to traverse the
search warrant. Therefore, the trial court properly denied defendants motion to traverse
the search warrant.

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 DISPOSITION
The judgment is affirmed.

RAYE , P. J.

We concur:

HOCH , J.

RENNER , J.