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The People v. Brian David Heslington

May 20, 2011

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
BRIAN DAVID HESLINGTON, DEFENDANT AND RESPONDENT.



Appeal from an order of the Superior Court of Orange County, Richard M. King and Thomas M. Goethals, Judges. (Super. Ct. No. 08HF1533)

The opinion of the court was delivered by: Ikola, J.

CERTIFIED FOR PUBLICATION

OPINION

Reversed.

The People charged defendant Brian David Heslington with possession of controlled substances and a weapon found during a search of his home pursuant to a warrant. Prior to trial defendant moved to quash and traverse the search warrant and suppress the evidence. Because the affidavit that supported the search warrant was partially sealed, the court, in considering defendant's suppression motions, tried to comply with People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). But the court misapplied the Hobbs procedure and granted defendant's suppression motions. As a result, the People were unable to proceed with their action and the court dismissed it. Because the court misapplied Hobbs, we reverse the order dismissing the People's action against defendant.

FACTS

The Search Warrant and Affidavit

On August 4, 2008, Judge Frances Munoz issued a search warrant for defendant's home and six other residences (as well as related vehicles). The persons and property to be searched or seized included defendant and Scott Michael Guinn, blood or saliva DNA samples, clothing (including any bloodstained clothes), gang indicia, computers, and cell phones.

Officer Kristen O'Donnell signed the supporting affidavit, swearing under oath that the facts in the incorporated statement of probable cause were true. O'Donnell believed probable cause for a search warrant existed because the property to be searched and seized would tend to establish the felony offenses of attempted murder, street terrorism, and, as to John Lloyd (who allegedly struck someone with a billiard ball), assault with a deadly weapon.

Attached police reports stated that at 1:45 p.m. on July 27, 2008, four officers were dispatched to Blackie's By The Sea (Blackie's) after an anonymous caller reported a fight in the bar involving about 30 "biker guys." An officer observed about 18 males wearing leather "Set Free Soldiers" jackets running through the Blackie's parking lot and hiding behind vehicles.*fn1 He and another officer detained seven of these men. Recognizing one man as the head of the Soldiers gang, an officer asked for his name; the man replied, "Chief." The officers completed field investigation cards on the detainees, then released them after being unable to establish that a crime had occurred. (Attached to the affidavit were 14 field investigation cards dated July 27, 2008.) The owner of the bar stated he would provide the police with a video of the fight.

Three officers stopped a black Mercedes with no license plates fleeing the area. The car's three occupants wore Set Free Soldiers shirts and had folding knives. Two more knives were found in the trunk. One of the knives in the trunk had "wet blood streaks along the four inch blade," as well as a strand of hair and a red thread stuck to it. The car's occupants denied any knowledge of the bloodstained knife.

The driver of the Mercedes confirmed he had been involved in the fight at Blackie's. He said Set Free Soldiers is a church group which seeks "to rehabilitate and save parolees and other outlaw biker types who want to find Christ." He and about 10 of his brothers were at Blackie's with their head pastor, when around 10 to 15 "feather heads" (Hell's Angels) dressed in red T-shirts entered the bar in "formation with their chapter leader at the front of the group."*fn2 The Hell's Angels group was "very organized in their demeanor" and had only one member who spoke for them. The Angels spokesman told the head pastor of the Soldiers that the Soldiers were claiming to be associated with the Angels, but were not associates and should stop taking business away from the Angels. A fight ensued, during which an Angel hit a Soldier in the back of the head with a pool cue.

The Mercedes driver explained that since blood had been drawn by both groups, Hell's Angels would now consider Set Free Soldiers to be a rival gang and "green lighted," a status requiring any Angel to kill any Soldier seen "flying their colors," i.e., wearing a group jacket.

An officer at the scene of the crime observed a possible victim with a large laceration on the back of his head. The victim was uncooperative and refused to give any information about how he was injured. The officer photographed the victim's injuries. A police investigator found a pool of blood on the floor in the rear of the bar.

The incorporated statement of probable cause, prepared by O'Donnell, accurately summarized the foregoing police reports. It also summarized the surveillance video of the Blackie's incident. O'Donnell had reviewed the surveillance video with the help of two gang/homicide experts (Detective R. LaRochelle and Sheriff Deputy Corporal Dan Ponder).

The surveillance video showed three Soldiers, including chief pastor Phil Aguilar, entering the bar at 1:32 p.m. Two more Soldiers entered after them. Aguilar used his cell phone. Ten minutes later, two Hell's Angels entered the bar -- John Lloyd, the treasurer of the Orange County chapter, and David Dabbs, the vice-president of the San Diego chapter. Three more Angels (including defendant and Scott Guinn) followed them. Eight more Soldiers came in. Lloyd approached Aguilar, the Soldiers' leader. Aguilar extended his hand, but Lloyd refused to shake it. The two appeared to have a heated argument. An altercation ensued. At least 16 Soldiers were present during the altercation. A Soldier appeared to punch or stab Dabbs. Aguilar and his son restrained Dabbs against a wall. Two Soldiers punched an Angel. A Soldier, Jose Enrique Quinones, took out a knife, approached defendant from behind, made a slicing motion across defendant's throat, and then made a stabbing movement to defendant's torso. Quinones then appeared to stab Dabbs. Hell's Angel Lloyd wrestled with a Soldier. Lloyd pushed him onto a pool table and struck him on the back of the head with a cue ball, then pushed him onto the floor, where the two men punched each other. A Soldier punched Guinn.

The statement of probable cause included descriptions of the gang affiliations of the persons covered by the warrant. Ponder, an expert on the Hell's Angels gang, identified defendant as an "associate" of Hell's Angels.

O'Donnell believed, based on LaRochelle's knowledge and experience, that (1) "there was communication between the Hells Angels and Set Free Soldiers during which they planned the meeting time, date, and location"; and (2) "the incident on [July 27, 2008] was pre-planned and an ...


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