Trial Court: Mendocino County Superior Court Trial Judge: Hon. John A. Behnke (Mendocino County Super. Ct. No.SCUKCRCR080083743003) (Mendocino County Super. Ct. No.SCUKCRCR080083743002)
The opinion of the court was delivered by: Ruvolo, P. J.
CERTIFIED FOR PUBLICATION
In these consolidated criminal appeals, appellant Richard Lieng appeals from his plea of no contest to one felony count of cultivation of marijuana (Health & Saf. Code, § 11358), and appellant Tony Lieng from his plea of no contest to one felony count of possession of marijuana for sale (Health & Saf. Code, § 11359). The issues raised by both appellants on appeal relate to alleged error by the trial court in denying their motions brought under Penal Code section 1538.5 (Section 1538.5), to suppress evidence seized during the execution of a search warrant at real property located in Willits, California, and to traverse/quash the warrant.
We conclude that the trial court did not err in denying appellants' motions, and affirm the judgment and convictions.
A criminal complaint was filed on April 18, 2008, by the Mendocino County District Attorney charging both appellants with one felony count of cultivation of marijuana (Health & Saf. Code, § 11358) and one felony count of possession of marijuana for sale (Health & Saf. Code, § 11358). Both appellants were held to answer the charges following a preliminary hearing on May 30, 2008. Subsequently, a felony information was filed repeating the charges in the complaint, and appellants entered pleas of not guilty.
Thereafter, appellants filed motions to quash/traverse the search warrants and to suppress evidence under Section 1538.5, claiming evidence was seized during an unreasonable and constitutionally illegal search of their property located at 3550 Chinquapin Drive, Willits, California (the Lieng property). A hearing on the motion was held on January 7, 2009, at the conclusion of which the motion was denied by the trial court.
Prior to trial, both appellants entered into negotiated pleas. Appellant Richard Lieng pled no contest to one felony count of cultivation of marijuana (Health & Saf. Code, § 11358), and appellant Tony Lieng pled no contest to one felony count of possession of marijuana for sale (Health & Saf. Code, § 11359). At sentencing, the trial court placed both appellants on three years formal probation, with conditions, including that they each serve 60 days in county jail.
These appeals were thereafter filed, and this court ordered them consolidated for hearing and disposition on March 18, 2010. (Order, Mar. 18, 2010, Ruvolo, P. J.)
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court's factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (People v. James, supra, at p. 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v Hoyos, supra, at p. 891; People v. Ramos (2004) 34 Cal.4th 494, 505.)
B. Hearing and Ruling on Appellants' Section 1538.5 Motion
The hearing below on appellants' motion was bifurcated. It was agreed that first the parties would present evidence and argue whether the investigating law enforcement officer's observations at appellants' property, which led to the issuance of the search warrant, violated their Fourth Amendment rights. If the court were to conclude that their rights were not violated, then the parties intended to conduct a follow up hearing under Franks v. Delaware (1978) 438 U.S. 154, to determine if there was sufficient evidence presented to the magistrate justifying issuance of the warrant, and if there were any material misrepresentations of fact presented to the magistrate by the applicant (Franks motion).
1. Testimony of Sergeant Bruce Smith
The only witness called at the hearing was Mendocino County Sheriff's Sergeant Bruce Smith, who made the initial observations at appellants' property and who submitted the application for the warrant to the magistrate. Smith testified that he first went to the Chinquapin Drive address on March 27, 2008*fn1 , at about 4:30 a.m. He approached the property via a driveway that led past a metal building and on towards the residence. There was no gate obstructing access to the driveway. The metal building was approximately 20 feet from the driveway.
As Smith walked up the driveway approaching the metal building, he heard electric devices such as fans operating inside the building. He could also smell fresh marijuana in the air. He continued up the driveway towards the residence, which had a garage attached to it. In addition to the fans, as he approached the residence, he saw lights coming from the garage, and he could smell the strong odor of growing marijuana. The noises he heard from both buildings were consistent with what he had heard emanating from other marijuana growing operations.
All of Smith's observations were made from the driveway. At no time did he leave the driveway and walk around the property. The driveway was paved at some point, and then it became a dirt road. Moreover, the driveway was not a "public roadway," but instead was "a common driveway to ...