People v. Pina CA2/6 ( 2021 )

Filed 3/25/21 P. v. Pina CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B300473
(Super. Ct. No. 2017019124)
Plaintiff and Respondent, (Ventura County)
v.
DANIEL MICHAEL PINA,
Defendant and Appellant.
Daniel Michael Pina appeals the judgment entered after he
pleaded guilty to conspiracy to bring controlled substances into a
custodial facility and sell heroin and methamphetamine (Pen.
Code,1 §§ 182, subd. (a)(1), 4573, Health & Saf. Code, §§ 11352,
subd. (a), 11379, subd. (a)), and criminal street gang conspiracy
to sell heroin (§ 182.5, Health & Saf. Code, § 11352, subd. (a)).
Appellant also admitted suffering two prior strike convictions (§§
667, 1170.12). The trial court sentenced him to five years in state
All statutory references are to the Penal Code unless
1
otherwise stated.
prison, to be served consecutively to the two sentences of life
without the possibility of parole he was already serving for first
degree murder. Appellant contends the court erred in denying
his motion to suppress the evidence obtained through wiretaps of
the cellphones of his coconspirators. He also asks us to
independently review the sealed affidavits offered in support of
the orders authorizing the wiretaps, as contemplated in People v.
Hobbs (1994) 7 Cal.4th 948 (Hobbs). We affirm.2
FACTS AND PROCEDURAL HISTORY
Appellant is a member of the Mexican Mafia. In 1980, he
was convicted on two counts of murder and was sentenced to life
without the possibility of parole. In August 2016, appellant was
transferred from state prison to the Ventura County Pre-Trial
Detention Facility (PTDF). The purpose of the transfer was to
2 In his opening brief, appellant also contends that section
629.52, subdivision (a)(3) of California’s Wiretap Act (§ 629.50 et
seq.) is unconstitutionally overbroad. In his reply brief, he states
that “[i]f, after conducting an independent review of the
unredacted affidavit attached to Wiretap Warrants 2017-04 and
2017-04c, the Court finds that there was probable cause to issue
the warrant for any of the three crimes that [were] listed in Title
III [of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C.S. §§ 2510-2520], then [appellant] concedes that he does
not having standing to make the over breadth [sic] challenge.”
(See, e.g., Bailey v. City of National City (1991) 226 Cal.App.3d
1319, 1330, citations omitted [recognizing that “a person to whose
conduct a law clearly applies” lacks standing to assert that the
law is “vague or unconstitutionally overbroad when applied to the
conduct of others”].) Because we find that the referenced wiretap
orders were supported by a showing of probable cause as to the
three crimes that were listed in title III (see post, p. 14), we
accept appellant’s concession that he lacks standing to raise his
overbreadth claim.
2
investigate appellant’s participation in a conspiracy to traffic
heroin, methamphetamine, and cocaine throughout Southern
California and parts of the western United States.
All of appellant’s phone calls at the PTDF were recorded.
On March 16, 2017, the Ventura County Sheriff’s Department
applied for an order to intercept wire and electronic
communications to and from a total of six cellphones belonging to
Tina Debenedetto, Cathy Castro, and “Star.” The application was
signed by Chief Assistant District Attorney Janice L. Maurizi,
who was identified as “the District Attorney’s designee to act as
District Attorney in his absence.” From March 15 through March
19, (now former) District Attorney Gregory D. Totten was in New
Orleans for a National District Attorney’s Association board
meeting.
Deputy Sheriff Jeremy Bramlette submitted an affidavit in
support of the application. Deputy Bramlette asserted among
other things that there was probable cause to believe appellant
and his coconspirators had committed and were continuing to
commit the crimes of conspiracy (§ 182), extortion (§ 518), witness
intimidation (§ 136), and possession for sale, transportation, and
sale of controlled substances containing heroin and/or
methamphetamine (Health & Saf. Code, §§ 11351, 11352, 11378,
11379), where the substance exceeds three pounds of solid
substance by weight (§ 629.52, subd. (a)). Deputy Bramlette also
stated his belief that these crimes were “being committed for the
benefit of, at the direction of, or in association with a criminal
street gang in violation of Penal Code section 186.22 . . . .”
In his affidavit, Deputy Bramlette also requested that “the
wire and electronic telephone communication intercepts shall
take place in a facility belonging to the Ventura County Sheriff’s
Office. This is a secure facility located in the city of Camarillo,
3
State of California. I also request the San Bernardino Sheriff’s
officer be authorized to act as our agent in contacting telephone
service providers and acting as a conduit for data and audio in
the execution of the court order.”
On March 17, 2017, the trial court issued wiretap order
number 2017-04 authorizing wiretaps of the six cellphones
referenced in the application. The court’s order also stated that
“[p]ursuant to . . . [S]ection 629.4, the Court copy of the
recordings of any communications intercepted pursuant to this
order shall be sealed on a daily basis and presented to this Court
upon expiration of this Order, or any extension thereafter.” On
March 21 (wiretap order number 2017-04a), March 22 (wiretap
order number 2017-04b), and April 11 (wiretap order number
2017-04c), the court issued additional orders on applications
signed by District Attorney Totten. All three subsequent orders
included the directive regarding daily sealing.
The monitoring of calls under the wiretap orders was
conducted in Camarillo at the secure facility referred to in
Deputy Bramlette’s affidavit. Because the Ventura County
Sheriff’s Department did not have an internet connection with
the cellphone carriers for the phones identified in the wiretap
orders, it coordinated with the San Bernardino Sheriff’s
Department, which had such a connection. Whenever a targeted
call was intercepted, the phone company routed the information
to the San Bernardino Sheriff’s Department, which used a
building with servers to route the call to the Camarillo facility for
monitoring by Ventura County Sheriff’s deputies. No listening or
recording of the calls took place in San Bernardino.
All intercepted data received at the Camarillo facility was
contemporaneously stored in a computer system. The wiretaps
concluded on the afternoon of April 17, 2017. Due to the large
4
amount of data, the process of copying the recorded data onto
discs was not completed until the morning of April 19. The trial
judge, who was in trial on April 19, scheduled the sealing for 4:30
p.m. the following day. On April 20, copies of all the intercepted
communications were submitted to the court on discs and the
court ordered them sealed.
On November 22, 2017, appellant was charged in case
number 2017019124 with conspiracy to bring controlled
substances into a custodial facility and sell heroin and
methamphetamine, possession of heroin for sale, and possession
of methamphetamine for sale. In May 2018, the prosecution
moved to consolidate the case with case number 2016044783, in
which appellant was also charged with conspiring to traffic and
sell drugs from prison. The prior case involved several wiretaps
that began in April 2016. The court granted the motion and in
December 2018, the prosecutor filed a consolidated amended
felony information charging appellant in 14 counts.
In January 2019, appellant moved to suppress evidence
obtained from eleven of the wiretap orders issued in 2016 and
requested a hearing under Franks v. Delaware (1978) 438 U.S.
154, 171 [57 L.Ed.2d 667]). The trial court denied the motion
except for one issue, which the court reserved ruling on until the
prosecution presented more evidence.
In April 2019, the prosecution dismissed all of the counts
relating to the 2016 wiretap orders in the interests of justice.
The prosecution subsequently filed as second amended felony
information charging appellant with one count of conspiracy to
commit a crime, i.e., bring controlled substances into a custodial
facility and sell heroin and methamphetamine.
Appellant moved under section 629.72 and 1538.5 to
suppress the evidence obtained pursuant to the 2017 wiretap
5
orders. The prosecution opposed the motion, which was denied.
The prosecution subsequently filed a third amended information
adding a count for criminal street gang conspiracy to sell heroin.
That same day, appellant pleaded guilty to both counts pursuant
to a plea bargain.
DISCUSSION
I.
Motion to Suppress
Appellant contends the trial court erred in denying his
motion to suppress the evidence obtained from the 2017 wiretap
orders. We disagree.
“‘In general, California law prohibits wiretapping,’” with
certain statutory exceptions. (People v. Leon (2007) 40 Cal.4th
376, 383.) People v. Sedillo (2015) 235 Cal.App.4th 1037, 1053
(Sedillo).) Those exceptions, as set forth in California’s Wiretap
Act (§ 629.50 et seq.), allow judicial authorization of a wiretap
upon the determination of probable cause to believe that: (1) “an
individual has committed, is committing, or is about to commit
one or more” of several enumerated offenses (Leon, at p. 384),
including murder, attempted murder, conspiracy to commit
murder, or “[a] felony violation of Section 186.22” (§ 629.52, subd.
(a)(2), (3), (6)); (2) “communications concerning the illegal
activities will be obtained through” the wiretap (§ 629.52, subd.
(b)); and (3) “the communications device will be used by the
person whose communications are to be intercepted (§ 629.52,
subd. (c)).” (Leon, at p. 384; People v. Camel (2017) 8 Cal.App.5th
989, 1001.)
Section 629.72 permits a defendant to move to suppress
some or all of the contents of any intercepted communication or
evidence derived from it, but “only on the basis that the contents
or evidence were obtained in violation of the Fourth Amendment
6
of the United States Constitution or of this chapter.” Because
federal law (through title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C.S. §§ 2510-2520) establishes
the minimum standards for the admissibility of evidence
procured through electronic surveillance, we look to both federal
and California law in applying the California wiretap statute.
(People v. Otto (1992) 2 Cal.4th 1088, 1092.)
“The United States Supreme Court has never ‘[gone] so far
as to suggest that every failure to comply fully with any
requirement provided in Title III would render . . . interception of
wire or oral communications “unlawful.”’ Rather, the high court
has held exclusion of wiretap evidence is required under Title III
only when ‘there is [a] failure to satisfy any of those statutory
requirements that directly and substantially implement the
congressional intention to limit the use of intercept procedures to
those situations clearly calling for the employment of this
extraordinary investigative device.’ In other words, the statutory
exclusion remedy only applies to those provisions which ‘play a
central role in the statutory scheme.’” (People v. Jackson (2005)
129 Cal.App.4th 129, 149 (Jackson).) Accordingly, “the proper
analysis [for] a motion to suppress wiretap evidence must ask
and answer the following questions. (1) Has the defendant
established a violation of a provision of the wiretap law? If not,
the motion is denied. (2) If a wiretap violation has been
established was the provision violated one which ‘was intended to
play a central role in the statutory scheme[?]’ If the provision
was not intended to ‘play a central role,’ failing to comply with it
will not render interceptions under the wiretap order unlawful
and the motion is denied. (3) If the provision violated was central
to the legislative scheme was the purpose of the provision
achieved in spite of the error? If the purpose was achieved, the
7
motion is denied. If the purpose was not achieved, the motion is
granted.” (Ibid., internal footnotes omitted.)
In reviewing the trial court’s ruling on the motion to
suppress and its determination that the documentation
supporting the wiretap authorization application satisfied the
statutory requirements, “we defer to the court’s express or
implied factual findings if they are supported by substantial
evidence. We exercise our independent judgment to determine
whether, on the facts found, a search conducted by wiretap was
‘reasonable’ under the Fourth Amendment and whether the
wiretap was authorized and conducted in conformity with the
federal and state statutes regulating such a search.” (Jackson,
supra, 129 Cal.App.4th at p. 146.)
a. District Attorney’s Designee (§ 629.50, subd. (a))
Section 629.50, subdivision (a) provides that wiretap
applications “be made in writing upon the personal oath or
affirmation . . . of a district attorney, or the person designated to
act as district attorney in the district attorney’s absence.”
Appellant contends the trial court erred in finding that the
application for wiretap order number 2017-04 was properly
signed by Chief Assistant District Attorney Maurizi. We are not
persuaded.
The application, which was signed on March 16, 2017,
states that Maurizi was “the District Attorney’s designee to act as
District Attorney in his absence.” Moreover, it is undisputed that
former District Attorney Totten was in New Orleans from March
15 to March 19. Accordingly, Maurizi’s application was proper.
Appellant offers no authority for his claim that Totten was
prohibited from delegating his authority to Maurizi, whom
appellant characterizes as “an unelected underling.” We also
reject his assertion that the application failed to sufficiently state
8
whether Maurizi was authorized to act as district attorney “for
all purposes.” The application made clear that Maurizi was
authorized “to act as District Attorney in [Totten’s] absence.”
United States v. Perez-Valencia (9th Cir. 2013) 727 F.3d 852, in
which the applicant stated that he was merely “‘designated to act
in [the district attorney’s] absence pursuant to Penal Code
629.50’” (id. at p. 854, italics added), is inapposite.
Notwithstanding appellant’s claim, it is also clear that Totten
was unavailable to sign the application even though the
application did not expressly state he was “absent.” The trial
court thus did not err in finding that the application complied
with section 629.50, subdivision (a).
b. Jurisdiction (§ 659.52)
Section 659.52 states in pertinent part that “[u]pon
application made under Section 629.50, the judge may enter an
ex parte order . . . authorizing interception of wire or electronic
communications initially intercepted within the territorial
jurisdiction of the court in which the judge is sitting . . . .”
Appellant contends, as he did below, that the judge who issued
the wiretap orders in this case lacked jurisdiction to do so
because (1) there was no showing that the target phones were
physically located in Ventura County; and (2) the calls were
initially intercepted in San Bernardino County. We are not
persuaded.
California’s Wiretap Act was enacted “‘to expand
California wiretap law to conform to the federal law.’ [Citation.]”
(People v. Leon, supra, 40 Cal.4th at p. 383.) Accordingly, case
law on the federal counterpart to section 659.52 (18 U.S.C.S.
9
§ 2518(3))3 is instructive. As that authority makes clear, “an
interception occurs where the tapped phone is located and where
law enforcement officers first overhear the call.” (United States v.
Luong (9th Cir. 2006) 471 F.3d 1107, 1109; see also United States
v. Rodriguez (2d Cir. 1992) 968 F.2d 130, 136 [recognizing “[i]t
seems clear that when the contents of a . . . communication are
captured or redirected in any way, an interception occurs at that
time” but also that “since the definition of interception includes
the ‘aural’ acquisition of the contents of the communication, the
interception must also be considered to occur at the place where
the redirected contents are first heard”].) Here, it is undisputed
that the calls were first heard in Ventura County. Accordingly
appellant’s jurisdictional claim fails.4
3 The statute provides in relevant part that “the judge may
enter an ex parte order . . . authorizing or approving interception
of wire, oral, or electronic communications within the territorial
jurisdiction of the court in which the judge is sitting (and outside
that jurisdiction but within the United States in the case of a
mobile interception device authorized by a Federal court within
such jurisdiction).” (18 U.S.C.S. § 2518(3).). “‘[I]ntercept’” is
defined as “the aural or other acquisition of the contents of any
wire, electronic, or oral communication through the use of any
electronic, mechanical, or other device.” (Id., § 2510(4).)
4 For the first time in his reply brief, appellant asserts that
“[t]he federal wiretap act only establishes the minimum
standards for the admissibility of evidence procured through
electronic surveillance. It does not preclude a State from
requiring more than Title III.” (Citations omitted.) He fails to
recognize, however, that California’s Wiretap Act was enacted “‘to
conform to the federal law.’ [Citation.]” (People v. Leon, supra,
40 Cal.4th at p. 383.)
10
c. Sealing (§ 629.64)
Section 629.64 states in pertinent part that “[i]mmediately
upon the expiration of the period of the [wiretap] order . . . , the
recordings shall be made available to the judge issuing the order
and sealed under his or her directions.” The corresponding
federal statute (18 U.S.C.S. § 2518(8)(a)) is virtually identical.
If the recordings are not “immediately” made available to the
judge, the government must “provide a ‘satisfactory explanation’
for the delay in obtaining a seal. [Citation.]” (United States v.
McGuire (9th Cir. 2002) 307 F.3d 1192, 1203.) “[I]mmediately
sealing the tapes means ‘within one or two days’ and ‘any delay
beyond that certainly calls for explanation.’ [Citations.]” (United
States v. Pedroni (9th Cir. 1992) 958 F.2d 262, 265.)
Appellant contends as he did below that the recordings
were not properly sealed. Although neither section 629.24 nor its
federal counterpart required that the recordings be sealed on a
daily basis, the wiretap orders issued by the court stated that the
recordings should be so sealed “and presented to [the] Court upon
expiration of [the] Order, or any extension thereof.” According to
appellant, the recording thus had to be sealed every day. He also
claims that the People failed to offer a legitimate reason for its
two-day delay in submitting the recordings to the court for
sealing. We conclude otherwise.
Because neither section 629.64 nor its federal counterpart
require daily sealing, the absence of such sealing provided no
basis for the court to grant appellant’s motion to suppress under
section 629.72. Moreover, the trial court did not err in finding
that the People timely complied with the requirements of section
629.64. The wiretap orders expired on the afternoon of April 17,
2017. On April 19, at approximately 11:00 a.m., Deputy
Bramlette informed the prosecutor that the recordings were
11
ready to be submitted to the judge for sealing. The judge was in
trial, he scheduled the sealing for the following day at 4:30 p.m.
Because the recordings were “made available to the judge”
within two days of the expiration of the wiretap orders, the trial
judge did not err in finding that the recordings were timely
submitted. (United States v. Pedroni, supra, 958 F.2d at p. 265.)
To the extent it took an additional day for the judge to actually
receive and seal the recordings, that delay was solely attributable
to the judge due to his unavailability. (See id. at p. 266 [“The
unavailability of the issuing or supervising judge may constitute
a satisfactory explanation for a sealing delay”]; see also United
States v. Fury (2d Cir. 1977) 554 F.2d 522, 533 [concluding that a
six-day delay in sealing was reasonably explained by the fact that
the issuing judge was on vacation].) Moreover, Deputy
Bramlette’s testimony made clear that the Ventura County
Sheriff’s Department “took special precautions to safeguard the
recordings pending judicial sealing.” (United States v. McGuire,
supra, 307 F.3d at p. 1204.) Although appellant speculates that
the delay in sealing may have created chain of custody issues, he
makes “no claim that any of the recordings have been tampered
with, the evil the sealing requirement is designed to combat.”
(People v. Davis (2008) 168 Cal.App.4th 617, 631.) Appellant’s
claim that the court erred in denying his motion to suppress on
the ground that the recordings were not immediately made
available to the court for sealing thus fails.
II.
Unredacted Affidavits
In his final claim, appellant asks us to independently
review the redacted portions of the sealed affidavits
accompanying wiretap order numbers 2017-04 and 2017-04c, as
contemplated in Hobbs, supra, 7 Cal.4th 948. We agree with the
12
People that the hearing procedure set forth in Hobbs did not
apply (nor did the court conduct such a hearing) because
appellant did not file a noticed motion to traverse the affidavits
or quash the wiretap orders on the ground that the supporting
affidavits contained material misrepresentations, did not seek
disclosure of the identity of a confidential informant, and did not
move to unseal the unredacted affidavits. (See id. at p. 972.)
Although he requested a Franks hearing in moving to suppress
evidence obtained from the wiretap orders issued in 2016, all of
the charges relating to those orders were dismissed by the
prosecution pursuant to section 1385.
Appellant, however, did claim in his motion to suppress
that the wiretaps of target phone numbers 2, 2a, and 6 were not
supported by a showing of probable cause as set forth in the
redacted affidavits upon which wiretap orders numbers 2017-04
and 2017-04c were based. It is also clear that in adjudicating this
claim, the trial court conducted an in camera review of the
unredacted affidavits. As the People note, the court also relied on
the redacted portions of the affidavits in finding that the
challenged wiretaps were supported by probable cause.
Accordingly, we need only decide whether the unredacted
affidavits support the court’s finding of probable cause. “The
question facing a reviewing court asked to determine whether
probable cause supported the issuance of the [wiretap orders] is
whether the magistrate had a substantial basis for concluding a
fair probability existed that a [wiretap] would uncover
wrongdoing. [Citations.] ‘The task of the issuing magistrate is
simply to make a practical, common sense decision whether,
given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons
supplying hearsay information, there is a fair probability that
13
contraband or evidence of a crime will be found in a particular
place.’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-
1041.)
Based on our independent review of the unredacted
affidavits, we conclude that the challenged wiretap orders were
supported by probable cause. Accordingly, the trial court did not
err in denying appellant’s motion to suppress on that ground.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
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Ben Coats, Judge
Michelle M. Castillo, Judge
Superior Court County of Ventura
______________________________
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Charles J. Sarosy, Deputy Attorney
General, for Plaintiff and Respondent.