PEOPLE v. MARIN

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Jose Leonardo MARIN, et al., Defendants and Respondents.

Cr. 42141.

Decided: September 27, 1984

Robert H. Philibosian, Los Angeles County Dist. Atty., Harry B. Sondheim, Head Deputy of the Appellate Div., George M. Palmer and John W. Messer, Deputy Dist. Attys., for plaintiff and appellant. Shipley & Perez and William K. Shipley, Newport Beach, for defendant and respondent Jose L. Marin. Michael D. Abzug, Los Angeles, for defendants and respondents Oscar J. Salazar and Diana Buritica. Gary Pohlson, Santa Ana, for defendant and respondent Fernando Marin. Joseph Mijares, Los Angeles, for defendant and respondent Joaquin E. Marin. Wilbur F. Littlefield, Los Angeles County Public Defender, Laurence M. Sarnoff, Stephen Galindo and H. Reed Webb, Deputy Public Defenders, for defendant and Respondent Francisco A. Alzate. Frank Gomez, Pasadena, for defendant and respondent F.J. Ramirez-Rios. Michael Carney, Los Angeles, for defendant and respondent Carlos A. Hoyos. Charles Urtuzuastegui, Los Angeles, for defendant and respondent Armando J. Posada.

The People appeal from the trial court's orders setting aside the information pursuant to Penal Code section 995 as to Jose Leonardo Marin, Oscar Salazar (hereinafter referred to as Salazar), Fernando Marin, Joaquin Marin, Francisco A. Alzate (hereinafter referred to as Alzate), Francisco Ramirez-Rios (hereinafter referred to as Ramirez-Rios), Carlos Hoyos (hereinafter referred to as Hoyos), Armando Posada (hereinafter referred to as Posada), and Diana Buritica (hereinafter referred to as Buritica), hereinafter collectively referred to as the defendants.   We reverse.

FACTUAL BACKGROUND

In April 1981, police officer Gordon Sullenger (hereinafter referred to as Sullenger) received information from a confidential informant (hereinafter referred to as CI 1) describing a cocaine smuggling and distribution operation headed by Jose Leonardo Marin.1  CI 1 described the operation as follows:  Columbian nationals would swallow packages of cocaine, fly to Los Angeles, check into a motel, and take laxatives for one or two days to expel the packages of cocaine.2  Once the cocaine was expelled, Jose Marin would pick up the couriers and take them to a “stash location” where the cocaine would be weighed.   The couriers were allegedly paid $1,000, plus an additional $8 for each gram of cocaine transported.   The couriers allegedly were also utilized to transport money back to Columbia to pay for the cocaine brought into the United States.

Sullenger contacted the Drug Enforcement Administration and was told that Jose Marin was the target of a cocaine smuggling investigation.

On several occasions between August 31 and September 9, 1981, a confidential informant (hereinafter referred to as CI 2), “a member of a large-scale organization involved in the importation and distribution of cocaine on a nationwide level,” told Officer Ron De Pompa (hereinafter referred to as De Pompa) that his/her organization has sold to and purchased cocaine from Jose Marin and that Jose Marin was currently involved in smuggling and distributing cocaine both in Los Angeles and throughout the United States.

In mid-August, the Los Angeles and Glendale police departments conducted a joint investigation and surveillance of known narcotic traffickers.   The investigating officers observed Jose Marin apparently engaging in a narcotics transaction.   This investigation led to the arrests of eight people and the seizure of approximately one kilo of cocaine.

On September 9, 1981, Sullenger and other officers placed Jose Marin's residence (hereinafter referred to as Corteen) under surveillance.   At approximately 6:30 p.m., Jose Marin entered a blue Pontiac automobile parked in front of the apartment complex being surveilled.   He drove to a shopping mall known as the Glendale Galleria.   Once inside, he was met by Salazar.   The two men placed a two or three minute call at a pay telephone.   They talked to each other for about ten minutes and then placed another short telephone call.   They walked to another area of the shopping complex where they were met by Buritica and a small child.   At approximately 7:15 p.m., Jose Marin returned to Corteen.   About 30 minutes later, Jose Marin returned to the Glendale Galleria.   Once inside, he met another man and the two of them went to a pay telephone where Jose Marin made a brief telephone call.   The two men left the Glendale Galleria separately.   Sullenger followed Jose Marin to the Astro Motel in Glendale.   Jose Marin entered one of the motel rooms.   He exited the room with Alzate and Ramirez-Rios 20 minutes later and entered another motel room.   He left this room 5 minutes later with Sigifredo Sanchez 3 (hereinafter referred to as Sanchez) and made a short telephone call at a pay telephone.   A car pulled into the parking lot and, after a short conversation, Sanchez entered this car.   Jose Marin, Alzate and Ramirez-Rios entered Jose Marin's car.   After driving on various freeways, Jose Marin pulled onto the shoulder of an off-ramp, activated the emergency flashers and flashed the headlights every 10 or 15 minutes.   After about 30 minutes, Jose Marin drove around and then returned to the same freeway off-ramp where they remained for approximately 30 minutes.   Jose Marin then left the off-ramp and drove around on some more streets and then returned to the Astro Motel between 11:30 p.m. and 12:00 a.m. where he dropped off Alzate and Ramirez-Rios.   They returned to the same room that Sullenger previously saw them occupy.   Ten minutes later, Alzate, Ramirez-Rios, Hoyos, Fernando and Joaquin Marin exited this room, entered a car in the parking lot and drove to an apartment complex on Lankershim Boulevard.   Ten minutes later, the car proceeded to a house on Eton Street (hereinafter referred to as Eton).   Officer Ed Hoffman saw four to six people exit this car.   Two of these people removed two pieces of luggage from the car and all of them entered the house.

Upon leaving the Glendale Galleria at approximately 7:15 p.m., Salazar and Buritica drove to the Astro Motel.   While Salazar waited in the car, Buritica walked to a room on the second floor, returning to the car less than a minute later.   Posada then came to the car from the second floor and spoke to Salazar for approximately five minutes.   Posada went to the second floor and returned to the car within one minute carrying a small object the size of a cigarette package in his hand.   Posada entered the car and the three of them drove to an apartment complex on South Catalina Avenue in Redondo Beach (hereinafter referred to as Catalina).

On a date not ascertainable from the record, the manager of the Astro Motel notified the Glendale Police Department that numerous Columbian nationals were checking into the Astro Motel, were staying two to three days and were being dropped off and picked up by a man fitting Jose Marin's description and in a car fitting the description of that which Jose Marin drives.

On September 10, 1981, at approximately 4 a.m., Sullenger obtained a warrant to search the premises of Corteen and Eton (search warrant number 442).   Sullenger's affidavit contained the information obtained from CI 1, and statements as to CI 1's knowledge and reliability;  the information obtained from CI 2 and statements as to CI 2's knowledge;  the information obtained from the Drug Enforcement Administration;  the information obtained from the manager of the Astro Motel;  the observations made during the mid-August joint surveillance;  and the observations made during the September 9 surveillance.

At approximately 4:30 a.m., Eton was searched.   Fernando Marin, Joaquin Marin and Hoyos were in a bedroom in which a small pile of cocaine was discovered on a magazine on the bed.   Three packages of cocaine wrapped in masking tape were found in a cabinet underneath the bathroom sink.   Among the items recovered from the Eton search were airline ticket stubs and boarding passes from Miami to Los Angeles in the names of J. Ramirez and Alzate, an Astro Motel business card, and a key to a room at the Astro Motel.   Fernando Marin, Joaquin Marin, Alzate, Ramirez-Rios and Hoyos were arrested.

The police proceeded to search Corteen.   Among the items recovered were an airline ticket from Los Angeles to Bogota, dated March 13, in the name of Jose Marin, a wallet containing a Columbian identification card in the name of Ramirez-Rios and an Astro Motel business card, a wallet containing Columbian currency and a Florida driver's license in the name of Alzate, documents establishing Jose Marin's residency at Corteen, $12,003 in cash, and a phone bill listing Jose Marin's name but an address other than Corteen, and several toll charges.   Jose Marin was arrested.

The police contacted the telephone company and was informed that one of the frequently called numbers on the list of toll charges was registered to Buritica at the Catalina apartment complex surveilled the day before.

On September 10 at 8:30 a.m., De Pompa appeared before the same judge who issued search warrant number 442 earlier that morning.   De Pompa sought a warrant to search Catalina.   De Pompa's affidavit incorporated Sullenger's affidavit to search warrant number 442.   De Pompa further informed the judge of the surveillance of Buritica from the Astro Motel to Catalina on September 9, and the items recovered from the searches of Eton and Corteen including the list of telephone toll charges.   Search warrant number 443 was issued for Catalina.   Among the items recovered from the Catalina search were 1428 grams of cocaine in several packages, $58,000 in cash, a $50,000 deposit receipt in the name of Salazar, a wallet containing Salazar's passport and a round trip airline ticket from Bogata-Los Angeles in his name, a postcard of the Astro Motel, a round trip airline ticket from Bogata-Los Angeles in the name of Buritica, and Buritica's passport and Columbian identification card.

The police subsequently went to room 214 of the Astro Motel.   Sanchez gave the police permission to enter and search the room.   Among the items recovered were Sanchez' identification, passport, a registration slip for the motel room in his name, and a partially empty box of Ex-Lax laxative.   Observed, but not recovered, were tissues and a towel with blood and fecal stains.4  Sanchez was arrested.

While other search warrants were obtained and searches conducted thereto, they are not relevant to the issues presented by this appeal.

PROCEDURAL HISTORY

A preliminary hearing was conducted between September 25, 1981 and October 23, 1981.   Roger Hanson (hereinafter referred to as Hanson) was retained as counsel for both Alzate and Ramirez-Rios.   The magistrate inquired into whether Hanson had discussed any potential conflict of interest with his clients.   Hanson then explained the theoretical conflict to his clients by giving them the example of one of them wanting to blame the other for the crime.   Hanson then represented to the court that his clients were willing to waive any conflict of interest for the purpose of the preliminary hearing.

The magistrate then specifically addressed Alzate and Ramirez-Rios.   She asked each of them whether they understood the potential conflict of interest, and that they had a right to separate counsel.   They stated that they understood this but still desired Hanson to represent both of them.

After 5 days of testimony, Hanson advised the court that he had a federal court appearance and requested that another attorney from his office be substituted to represent his two clients.   The People strenuously objected to the introduction of an attorney not familiar with the testimony at the preliminary hearing up to that point.   In an attempt to resolve this problem, the magistrate decided to appoint George Chula (hereinafter referred to as Chula) to represent Hanson's two clients.   Chula was already representing Salazar.

Hanson asked Alzate and Ramirez-Rios on the record whether they objected to Chula handling their case in his place.   They gave their permission.

The court asked Alzate and Ramirez-Rios whether they understood the potential conflict between them and Salazar or between each of them.   They each waived any possible conflict of interest, and the court made a finding that they each “knowingly, intelligently, and understandingly waived any claim of conflict of interest.”

The defendants' motions to quash and traverse the search warrants were denied and all of the defendants except Sanchez were held to answer.

On November 9, 1981, the People filed an information against the defendants.   Count I charged all nine defendants with violation of Penal Code section 182 in that they conspired to violate Health and Safety Code section 11352 (sale and transportation of narcotics).   Count II charged Fernando Marin, Joaquin Marin, Alzate, Ramirez-Rios and Hoyos with violation of Health and Safety Code section 11351 (possession of cocaine for the purpose of sale).   Count III charged Salazar, Posada and Buritica with violation of Health and Safety Code section 11351 (possession of cocaine for the purpose of sale).

On November 9, 1981, Jose Marin, Jaoquin Marin, Alzate, Ramirez-Rios, Hoyos, Posada and Buritica were arraigned and pleaded not guilty.

On November 10, 1981, Salazar was arraigned and pleaded not guilty.

On April 6, 1982, Fernando Marin was arraigned and pleaded not guilty.

All nine defendants brought motions in the Superior Court to set aside the information pursuant to Penal Code 995.

On January 14, 1982, the superior court granted Alzate and Ramirez-Rios' motions on the ground that they were denied a fair preliminary hearing due to ineffective joint representation.   They were dismissed.

On January 18, 1982, the superior court granted the motions of Jose Marin, Salazar, Joaquin Marin, Hoyos, Posada and Buritica as to count I (conspiracy) on the ground of insufficient evidence.   Jose Marin was dismissed.

On January 25, 1982, the superior court granted the motions of Salazar, Joaquin Marin, Hoyos, Posada and Buritica as to the remaining counts on the ground that the search warrants were not supported by probable cause.   They were dismissed.

On April 6, 1982, Fernando Marin's motion to set aside the information was granted for the reasons stated above.

On January 11, 1984, this court filed an opinion reversing the trial court's orders setting aside the information.

The California Supreme Court granted the defendants' petition for a hearing on March 22, 1984.   On July 12, 1984, the Supreme Court retransferred the case to this court for reconsideration in light of People v. Chapman (1984) 36 Cal.3d 98, 201 Cal.Rptr. 628, 679 P.2d 62, a case issued after our original opinion was filed.

ISSUES

To determine whether the superior court erred in granting defendants' motion to set aside the information, we must resolve:  1) whether the search warrants were valid;  2) whether there was sufficient evidence to support a charge of conspiracy;  and 3) whether there was ineffective joint representation of Alzate and Ramirez-Rios at the preliminary hearing and whether they effectively waived any conflict of interest.

DISCUSSION

 The standard of review to be used by the superior court on a motion pursuant to Penal Code section 995 was set forth in Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197 wherein the court stated:  “Evidence that will justify a prosecution need not be sufficient to support a conviction.  (Lorenson v. Superior Court, 35 Cal.2d 49, 56 [216 P.2d 859];  People v. Willmirth, 247 Cal.App.2d 513, 514 [55 Cal.Rptr. 678];  see People v. McRae, 31 Cal.2d 184, 187 [187 P.2d 741].) ‘probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’  (Jackson v. Superior Court, 62 Cal.2d 521, 525 [42 Cal.Rptr. 838, 399 P.2d 374];  Robison v. Superior Court, 49 Cal.2d 186, 188 [316 P.2d 1];  Lorenson v. Superior Court, supra, [35 Cal.2d] at p. 56 [216 P.2d 859].)  An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.  (De Mond v. Superior Court, supra, 57 Cal.2d 340, 344 [19 Cal.Rptr. 313, 368 P.2d 865];  cf. Jackson v. Superior Court, supra, [62 Cal.2d] at p. 525 [42 Cal.Rptr. 838, 399 P.2d 374], People v. Crosby, 58 Cal.2d 713, 719 [25 Cal.Rptr. 847, 375 P.2d 839].)  [¶]  A reviewing court may not substitute its judgment as to weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the court will not inquire into its sufficiency.  (Perry v. Superior Court, 57 Cal.2d 276, 283 [19 Cal.Rptr. 1, 368 P.2d 529];  People v. Jablon, 153 Cal.App.2d 456, 459 [314 P.2d 824] cf. Jackson v. Superior Court, supra, [62 Cal.2d] at p. 525 [42 Cal.Rptr. 838, 399 P.2d 374].)  Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.  (People v. Cron, 207 Cal.App.2d 452, 457 [24 Cal.Rptr. 587];  cf. Jackson v. Superior Court, supra, [62 Cal.2d] at p. 530 [42 Cal.Rptr. 838, 399 P.2d 374].)”

 This standard as well as the standard of review we must apply to the superior court's determination was recently set forth in People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278, wherein the court, in explaining the different standards involved in motions pursuant to Penal Code sections 995 and 1538.5 stated:  “[I]n ruling on a motion under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court's express or implied findings if they are supported by substantial evidence.  (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].)  By contrast, in proceedings under section 995 it is the magistrate who is the finder of fact;  the superior court has none of the foregoing powers, and sits merely as a reviewing court;  it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate.  (People v. Hall (1971) 3 Cal.3d 992, 996 [92 Cal.Rptr. 304, 479 P.2d 664], and cases cited.)   On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer.  (People v. Maltz (1971) 14 Cal.App.3d 381, 389 [92 Cal.Rptr. 216];  see generally People v. Sanchez (1972) 24 Cal.App.3d 664, 690, fn. 15 [101 Cal.Rptr. 193].)”

A. Validity of the search warrants.

Both the People and the defendants argue the validity of the search warrants in terms of the so-called “two-pronged test” established in Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and followed in Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.   However, we need not decide whether the information provided by the informants meet this test in light of Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.

In Gates, the police received an anonymous letter describing the Gates' drug-pushing operation.   After subsequent investigation, the police obtained and executed a search warrant recovering contraband.   The state courts suppressed these items holding that the affidavit failed to meet Aguilar's two-pronged test.   The United States Supreme Court reversed stating that various state courts have misinterpreted Aguilar, and that while the two Aguilar factors are relevant, they are not independent requirements.   Rather, the “totality of the circumstances” must be evaluated by the magistrate to determine whether probable cause exists.

While the court did not explicitly state that Gates is retroactive in effect, in our original opinion we concluded that this was implied since the Gates opinion served to merely clarify what was intended by Aguilar but misinterpreted by various state courts.   Our conclusion was demonstrated to be correct in Massachusetts v. Upton (1984) 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721, wherein the United States Supreme Court applied the Gates standard to a search warrant issued in 1980.

Our review of the California cases which have interpreted and applied the two-pronged test reveals that these cases were rooted in Aguilar and the Fourth Amendment to the United States Constitution, and not on the California Constitution.

 In applying the “totality of the circumstances” test to the case at bench, we conclude that the search warrants were properly issued.   The affidavit to search warrant number 442 stated the information conveyed by CI 1.   CI 1 described Jose Marin's appearance, the types of cars he drove, the details of his cocaine smuggling operation, and that CI 1 had personally observed Jose Marin engage in cocaine transactions.   The affiant attested to CI 1's reliability because CI 1 had assisted the police for the preceding eleven months in cases that led to the arrests and prosecution of several people and the confiscation of large amounts of cocaine and positively identified a photograph of Jose Marin.   The affiant contacted the Drug Enforcement Administration who informed him that Jose Marin was the target of a major cocaine smuggling investigation.   Information obtained from CI 2, described as “a member of a large-scale organization involved in the importation and distribution of cocaine on a nationwide level,” revealed that “Jose Marin was residing in the Los Angeles area and was currently involved in smuggling cocaine into the United States and was distributing the cocaine in the L.A. area and throughout the nation.”   CI 2 stated that his organization had purchased cocaine from and sold cocaine to Jose Marin.

The manager of the Astro Motel informed the police that numerous Columbian nationals were checking into the Astro Motel, staying for a period of two to three days and were being dropped off and picked up by a man fitting Jose Marin's description and driving a vehicle fitting the description of Jose Marin's automobile.

Three weeks before the affidavit, Jose Marin was observed by police officers to engage in an apparent narcotics transaction.

 The affiant also informed the magistrate of the September 9 surveillance described above which ultimately linked Corteen, Eton, Catalina and the Astro Motel together.5

The defendants argued to the superior court that the information obtained from CI 1 was too stale to reach a conclusion that contraband would be found at the time of the warrant.  “[I]t is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”  (Sgro v. United States (1932) 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260.)   However, the defendants' argument ignores any corroboration of CI 1's information which indicate its freshness.   The affiant stated that CI 1 has been furnished cocaine by Jose Marin and “․ has personally seen Leonardo Marin involved in cocaine transactions on numerous occasions for the past four months․”  While this statement is somewhat ambiguous, a fair interpretation could refer to the four month period preceding the date of the affidavit.   CI 2 confirmed CI 1's allegation that Jose Marin was currently engaging in smuggling cocaine.   CI 2's information was as recent as 11/212 weeks before the date the warrant issued.   Most importantly, the surveillance from the day before lends credibility to the suspicion that transportation of narcotics was in progress.

Under the “totality of the circumstances,” it was quite reasonable for the magistrate to conclude that contraband would be found at the locations to be searched.

Turning now to search warrant number 443 (Catalina), the affiant incorporated the affidavit to search warrant number 442 by reference, and further informed the magistrate of the items recovered from the search pursuant to search warrant number 442.   Of significance was a telephone bill listing a frequently called toll charge, the latest being on August 18, 1981.   A subsequent inquiry with the telephone company revealed that the telephone number on the toll charge was registered to Buritica at the Catalina address.   The affiant further informed the magistrate of the September surveillance which linked Corteen, Eton, Catalina and the Astro Motel together.

The defendants contend that the seizure of the toll records and subsequent inquiry with the telephone company was improper.

At the time the police contacted the telephone company, the closest appellate case on point stated that a search warrant was not necessary in such circumstances since “There is no reasonable expectation of privacy in name, address or telephone number as found in the record of the telephone company.”   (People v. Elder (1976) 63 Cal.App.3d 731, 738, 134 Cal.Rptr. 212.)

However, in People v. Chapman, supra, 36 Cal.3d 98, 201 Cal.Rptr. 628, 679 P.2d 62, the court disapproved Elder and held that article I, section 13, of the California Constitution requires the police to obtain a warrant before securing such information regarding an unlisted telephone number from the telephone company.6

While it is unclear whether Chapman applies retroactively or whether the rule in Chapman applies to information regarding a publicly listed telephone number,7 we will apply Chapman to this case since the order retransferring the case to this court instructs us to reconsider the case “in the light of People v. Chapman (1984) 36 Cal.3d 98 [201 Cal.Rptr. 628, 679 P.2d 62].”

 The problem posed in the case at bench is similar to a situation where the affidavit in support of a search warrant contains false information.   In those situations, where the affiant acts reasonably in relying on the accuracy of the information, a warrant issued on the basis of the erroneous affidavit may stand.  (Theodor v. Superior Court (1972) 8 Cal.3d 77, 97, 104 Cal.Rptr. 226, 501 P.2d 234.)   Where the affiant acts unreasonably (i.e., negligently) in relying on the accuracy of the information, the erroneous information must be excised and then the affidavit is tested to determine whether the remaining truthful information provides probable cause.  (Id., at pp. 100–101, 104 Cal.Rptr. 226, 501 P.2d 234.)   However, where the affidavit contains intentionally false statements of fact, a warrant based on that affidavit must fall and any evidence seized pursuant to that warrant must be excluded.  (People v. Cook (1978) 22 Cal.3d 67, 75, 148 Cal.Rptr. 605, 583 P.2d 130.)

 At the time the police contacted the telephone company, the existing state of the law did not require a search warrant.   The status of the case is therefore most analogous to the situation where an affidavit contains erroneous information and the affiant was reasonable in believing the accuracy of the information.   However, even assuming that this case is analogous to the situation where the affiant acted unreasonably, in light of the evidence seized at Eton and Corteen, and the observations on September 9 linking Corteen, Eton, the Astro Motel and Catalina, we conclude that, after excising the information obtained from the improper search, the remainder of the information in the affidavit constitutes probable cause.

While it is unnecessary to the disposition of this appeal, we note that the facts of this case fit squarely within the doctrine of inevitable discovery.   (See Nix v. Williams (1984) 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377, 84 D.A.R. 2152;  People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 145 Cal.Rptr. 795.)   Buritica participated in the activity observed during the September 9 surveillance.   According to De Pompa's testimony at the preliminary examination, during the September 9 surveillance, Detective Foresta observed Salazar, Buritica and Posada “go to the area of apartment 305” at Catalina.   It is clear that had the police neither seized the toll records nor contacted the telephone company, they would have discovered Buritica's identity and exact location as part of their normal and lawful investigation.

 Finally, we note that since, at the time the search warrants complained of were issued, the police conduct fully complied with what was required by the “law on the books” according to the closest appellate case on point, suppression of the evidence seized would not serve to deter unlawful activity but would only serve to encourage warrantless searches.   We therefore believe, without so deciding, that should the “good faith” exception to the exclusionary rule as recently announced in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, be applied retroactively, it would be applicable to the facts of the case at bench.

B. Sufficiency of the Evidence

 As stated above, in reviewing the preliminary magistrate's decision to hold the defendants to answer, we must disregard the superior court's determination and directly review whether the preliminary hearing magistrate could reasonably conclude that there was a possibility that an offense was committed and that the defendants were guilty of committing it.   Again, the evidence need not be as strong as that which is required to support a conviction, and we may not substitute our judgment regarding the weight of the evidence for that of the magistrate.

Since the existence of an agreement was what the superior court felt was the missing element to support the conspiracy charge, we will focus solely on that aspect of conspiracy.  “An agreement between alleged conspirators may be circumstantially inferred from evidence of their conduct in ‘mutually carrying out a common purpose in violation of a penal statute.’  (People v. Cockrell, supra, 63 Cal.2d 659 at pp. 667–668) [47 Cal.Rptr. 788, 408 P.2d 116].”  (People v. Fitzwater (1968) 260 Cal.App.2d 478, 488, 67 Cal.Rptr. 190.)

The preliminary hearing magistrate was presented with evidence of the informants' tips concerning the cocaine smuggling operation;  the conduct of the various defendants as observed by the police on the September 9 surveillance including the meetings at the Glendale Galleria, the trips to and from the Astro Motel and the luggage being carried from there, and the suspicious activity on the freeway off ramp;  the items seized pursuant to the search warrants including large amounts of cocaine, airline tickets between Bogata and Los Angeles and large amounts of money.

 “While mere association with the perpetrator of a crime is not sufficient to prove a criminal conspiracy (People v. Massey (1957) 151 Cal.App.2d 623 [312 P.2d 365] ), the entire conduct of the parties, their relationship, acts, and conduct, during and after the crime, may be taken into consideration by the jury in determining the nature of the conspiracy.   (People v. Lopez (1963) 60 Cal.2d 223 [32 Cal.Rptr. 424, 384 P.2d 16];  People v. Williams (1954) 128 Cal.App.2d 458 [275 P.2d 513];  People v. Kobey (1951) 105 Cal.App.2d 548 [234 P.2d 251].)”  (People v. Lewis (1963) 222 Cal.App.2d 136, 144, 35 Cal.Rptr. 1.)   Similarly, such evidence is clearly relevant to a determination of whether a probability exists that a defendant committed the offense charged.

The defendants' reliance on Lavine v. Superior Court (1965) 238 Cal.App.2d 540, 545, 48 Cal.Rptr. 8 is misplaced.   The facts of Lavine occurred during the tense period of the Watts riots.   An officer ordered three black males sitting in a parked car to leave the area.   They ignored the officer's order.   The officer approached the car with his gun drawn.   When he reached the car, the driver grabbed at the officer's gun.   Startled, the officer jumped back and the gun discharged, killing another police officer.   The two passengers were charged with conspiracy.   The court correctly held that there was no evidence from which an unlawful agreement could be inferred.   In the case at bench, rather than the spontaneous unanticipated conduct of the driver in Lavine, we have several interactions among the various defendants spanning a considerable period of time as well as the possession of large amounts of cocaine.

 After reviewing the evidence before it, we find that the preliminary hearing magistrate reasonably concluded that an implied agreement existed in a conspiracy to transport and sell narcotics.

C. The Joint Representation at the Preliminary Hearing.

As noted above, there were two periods of joint representation at the preliminary hearing.   The first consisted of Attorney Hanson's joint representation of Alzate and Ramirez-Rios.   The second consisted of Attorney Chula, who was already representing Salazar, replacing Hanson as counsel for Alzate and Ramirez-Rios.

At the time of the first period, the court inquired as to a potential conflict of interest.   After conferring with his clients, Hanson represented that they were willing to waive any conflict of interest.   The magistrate then personally informed Alzate that they had a right to separate counsel.   They subsequently personally waived any right to separate counsel or any conflict of interest.

Upon the prosecutor's urging, the court inquired into any possible conflict of interest between the counsel for Buritica (Janet Michaels) and the counsel for Buritica's husband Salazar (Chula).   Chula and Michaels were from the same law firm.   The prosecutor obtained a waiver of any conflict of interest from Buritica and Salazar after informing them of their right to counsel from different law offices and that, if they could not afford one, the court would appoint an attorney free of charge.8

Attorney Hanson subsequently requested the court to substitute in another attorney from his office so that he could appear in federal court.   The People objected.   The court had Chula, already representing Salazar, represent Alzate and Ramirez-Rios as well.   Hanson asked Alzate and Ramirez-Rios whether they objected to Chula substituting for him.   They agreed to it.   The court inquired whether they understood their potential conflict between Salazar and themselves.   They stated that they understood the situation and waived any conflict of interest.   The prosecution refused to take part in this procedure.   The court then made a finding that both defendants “knowingly, intelligently and understandingly waived any claim of conflict of interest.”   This became the second period of joint representation.

The superior court, in granting Alzate and Ramirez-Rios' petition to set the information aside on the basis of ineffective counsel, stressed the fact that neither Alzate nor Ramirez-Rios were informed that the court would appoint separate counsel at no charge to them.

1. Period One—the dual representation by Attorney Hanson:

 “The constitutional right of a criminal defendant to the effective assistance of counsel is among those most zealously protected in both state and federal courts and it encompasses the right to retain counsel of defendant's own choosing.  (People v. Byoune (1966) 65 Cal.2d 345, 348 [54 Cal.Rptr. 749, 420 P.2d 221].)  The California Supreme Court has pointed out that the ‘state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources—and that the desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’   (People v. Crovedi (1966) 65 Cal.2d 199, 207–208 [53 Cal.Rptr. 284, 417 P.2d 868].)  [¶] In accord with this principle, a criminal defendant may request and obtain separate court-appointed or retained counsel (People v. Chacon (1968) 69 Cal.2d 765 [73 Cal.Rptr. 10, 447 P.2d 106] ) or he may freely and voluntarily agree to dual or multiple representation by the same attorney, whether retained or court-appointed (Klemm v. Superior Court (1977) 75 Cal.App.3d 893 [142 Cal.Rptr. 509];  People v. Superior Court (Mroczko) (1979) 94 Cal.App.3d 626 [156 Cal.Rptr. 487] ).”  (In re Noday (1981) 125 Cal.App.3d 507, 516, 178 Cal.Rptr. 653.)

 “[A]lthough a criminal defendant is entitled to an effective defense, courts have carefully protected his right to choice of representation which necessarily includes the right to use the services of a retained lawyer who represents multiple defendants.   Therefore, while it is incumbent upon the trial court to inquire into the circumstances sufficiently to ascertain that the waiver of separate counsel is knowing and intelligent, there is a limit upon the court's interference and the court need not initiate inquiries in every case.  ‘[A]bsent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist ․’  (Cuyler v. Sullivan (1980) 446 U.S. 335, 346–347, 100 S.Ct. 1708, 1717–1718, 64 L.Ed.2d 333, 345–346, fn. omitted.)  [¶] Multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest.   In this regard it has been held that a defendant who objects to multiple representation should have the opportunity to demonstrate to the trial court the existence of potential conflicts;  on the other hand a defendant who raised no objection must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.  (Cuyler v. Sullivan, supra, 446 U.S. 335, 348–350 [100 S.Ct. 1708, 1718–1719, 64 L.Ed.2d 333, 346–347].)”  (In re Noday, supra, 125 Cal.App.3d at p. 519, 178 Cal.Rptr. 653.)

 In the case at bench, Alzate and Ramirez-Rios retained Hanson as counsel for both of them.   While the court had no duty to inquire into any conflict, it did so.   Both defendants waived any conflict of interest.

Since none of the defendants objected to the joint representation, they would now have to point to an actual conflict of interest which adversely affected their lawyer's performance.   All of the defendants at the preliminary hearing had identical interests;  namely, to quash the search warrants and argue that the evidence was insufficient to support a charge of conspiracy.   These avenues were vigorously pursued at the preliminary hearing.   We therefore conclude that both Alzate and Ramirez-Rios had the effective assistance of counsel during period one of the preliminary hearing.

2. Period Two—the multiple representation by Attorney Chula:

 On the fifth day of the preliminary hearing, Attorney Hanson wanted to substitute in an associate from his law firm.   The People objected since no transcript of the testimony had been prepared up to that point.   None of the defendants objected to the substitution.   The People's objection was reasonable since to allow in new counsel who was unfamiliar with the prior testimony may very well have led to ineffective representation.   The only practical solution that would allow the preliminary hearing to proceed smoothly was to allow one of the participating attorneys to represent Hanson's clients.   Chula offered his services.   The court adequately inquired into any potential conflicts and obtained a waiver.   As stated earlier, all defendants had identical interests.   Hanson had already informed the court that neither of his clients were going to testify at the preliminary hearing.   Therefore there was no risk of either defendant wanting to testify against another but being precluded by his attorney's divided loyalty.

As far as informing the defendants of their right to a court-appointed attorney, appointing a new attorney at this stage of the preliminary hearing would have been as objectionable as having Hanson's associate take over the case.

The superior court theorized that this joint representation may have interfered with the desire on the part of a defendant to turn state's evidence.   However, there is nothing in the record to indicate that any of the defendants wished to do so or that the prosecution wanted to follow such a course.

We therefore conclude that both Alzate and Ramirez-Rios had the effective assistance of counsel during period two of the preliminary hearing.

DISPOSITION

The order of the superior court setting aside the information is reversed and the case is remanded to proceed to trial.

FOOTNOTES

1.   According to Sullenger's affidavit for search warrant number 442, CI 1 referred to Jose Leonardo Marin merely as Leonardo Marin.

2.   These cocaine “eggs” were produced by filling the fingers of surgical gloves with cocaine, tying the ends with dental floss and then waxing the end to seal it.

3.   Sigifredo Sanchez was dismissed as a defendant at the end of the preliminary hearing.

4.   The evidence concerning the blood and fecal stained tissues and towel was stricken by the preliminary hearing magistrate apparently due to the police officers' failure to retrieve these items.

5.   While the activities observed by the surveilling officers were non-criminal in nature, such observations are relevant in an appraisal of whether probable cause exists.  (Illinois v. Gates, supra, 462 U.S. 213, ––––, fn. 13, 103 S.Ct. 2317, 2335, fn. 13, 76 L.Ed.2d 527, 552, fn. 13.)

6.   Federal law neither recognizes nor protects such a privacy interest.

7.   At the preliminary hearing, the parties stipulated that the telephone number in question was an unlisted number.

8.   While Alzate and Ramirez-Rios were in the same room, we cannot assume that they either heard the statement concerning the right to court-appointed counsel or understood that it applied to them as well.

L. THAXTON HANSON, Associate Justice.

SPENCER, P.J., and LEETHAM, J.*, concur.

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