[REVIEW GRANTED BY CAL. SUPREME COURT]
Santa Clara County Superior Court Superior Court No. C1110340 Hon. Vincent J. Chiarello, Judge
[Copyrighted Material Omitted]
Victoria H. Schultz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris Attorney General, Dane R. Gillette Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Adam Sergio Rodriguez was convicted after a court trial of possession of child pornography (Pen. Code, § 311.11, subd. (a)). The trial court suspended imposition of sentence and placed him on three years felony probation. On appeal, he argues that he was prejudiced because his relitigated motion to suppress was not heard by the judge who granted his earlier motion to suppress in violation of section 1538.5, subdivision (p). In the alternative, he contends his motion to suppress was erroneously denied and two of his probation conditions are unconstitutionally vague.
We conclude the trial court did not abuse its discretion when it declined to assign the motion to suppress to the judge who granted defendant’s motion to suppress in the first case. Additionally, we determine the motion to suppress was properly denied. However, we agree with defendant that two of his probation conditions require modification. We modify the probation conditions and affirm the judgment.
Factual and Procedural Background
In November 2009, San Jose Police Officer Russell Chubon began investigating a tip that an individual with the username “Damon Secloro” was making comments in an America Online chat group about having sex with teenage girls. Chubon served a search warrant on America Online to identify the user’s internet protocol (IP) address, and the account holder was identified as Susanna Rodriguez (defendant’s mother) with an address in San Jose.
The January 28, 2010 Investigation and Search
On January 28, 2010, Chubon and his partner, Kendra Nunes, went to the residence associated with the IP address. Chubon wore a concealed digital recorder and taped the visit. After conversing with the officers, defendant eventually surrendered his computer. The officers scanned the computer and found images of underage children in sexually explicit poses. On February 2, 2010, Chubon returned to the home with a search warrant. Defendant waived his rights and acknowledged he had child pornography on his computer, including approximately “a dozen photos and a dozen videos.” Defendant denied trading images with other individuals and said he had obtained the material through Web sites.
The First Case
On February 24, 2010, the district attorney filed a felony complaint charging defendant with possession of child pornography in violation of section 311.11, subdivision (a) and a count of possession of marijuana in violation of Health and Safety Code section 11357, subdivision (c). Judge Diane Northway conducted a preliminary hearing on the matter on September 23 and 24, 2010. Judge Northway also heard and denied defendant’s motion to suppress. Defendant was held to answer on both charges.
The Renewed Motion to Suppress and Judge Chiarello’s Decision
On January 3, 2011, defendant filed a renewed motion to suppress under section 1538.5, subdivision (i). Defendant argued the search and seizure of
his computer was invalid because the officers entered his home without a search warrant, his consent to the officers to take his computer was the direct result of the unlawful entry, and his consent was involuntary.
The motion was assigned to Judge Vincent Chiarello, who reviewed the transcript of the preliminary hearing and the taped encounter between the officers and Susanna Rodriguez, John Rodriguez (defendant’s father), and defendant. Judge Chiarello summarized the pertinent facts as follows:
Susanna was the first to come to the door and speak with the detectives when they arrived at the house. She told the detectives several times during their conversation she wished to talk with her husband, John. At some point, Detective Nunes said to Susanna: “Here is the reality. We could go get a search warrant and come, you know, kick the door in and do it that way.” Susanna told the officers to give her a few moments, and she retreated back into the house after closing the door. Several minutes later, defendant came to the door and began speaking with the detectives. Nunes told defendant that “if we’re reaching a dead-end at this point, and then we have to start considering things like a search warrant and all that, which I think is unnecessary based on all we know.”
Chubon asked if he and Nunes could go inside the house. John expressly told the officers to stay outside. The officers continued to talk to John, Susanna, defendant, and defendant’s brother. Defendant told the detectives to remain outside, and Chubon asserted he was concerned defendant could return with a gun. At some point, Chubon followed defendant into the house. Nunes followed Chubon inside. John and the officers had a conversation about their presence in the home. Nunes then asked Chubon if she should call “Steve Fein and see if we have enough for a search warrant.” Chubon told Nunes to go ahead with the call, but John interjected and said it was not necessary. Later, defendant unplugged his computer and gave it to the detectives.
Based on this evidence, Judge Chiarello concluded the interaction between the officers and the family had been “tainted at the outset by the statement that the officers could go get a search warrant and come kick the door in and do it that way.” Judge Chiarello asserted the People had failed to prove that defendant’s consent to the search was free and voluntary, because his consent was the result of coercion or duress. Judge Chiarello distinguished the case from People v. McClure (1974) 39 Cal.App.3d 64 [113 Cal.Rptr. 815]. In McClure,
the court concluded a statement that officers could pursue a search
warrant “did not serve to vitiate appellant’s consent to search, since this statement threatened nothing more than what the officers had a legal right to do.” (Id. at p. 69.) Judge Chiarello remarked that unlike the McClure case, here “the officers at the outset explicitly threatened to come back and kick the door in, which they most certainly did not have the right to do with a search warrant, unless, as [the district attorney] pointed out, there were certain circumstances later on that justified that.”
Judge Chiarello granted the motion to suppress on May 2, 2011, and the case against ...