PEOPLE v. HERNANDEZ (1986)

Defendant and appellant, Alex Mora Hernandez, appeals from a judgment of conviction on five counts of violation of Penal Code section 288, subdivision (a), lewd conduct with a child under the age of 14.   His appeal alleges two errors in proceedings in the trial court.   They are (1) failure to advise him of his privilege against self-incrimination prior to his submission on the basis of the preliminary examination transcript, and (2) denial of his motion to suppress evidence obtained through a search warrant, issued on allegations of criminal conduct more than three years prior to the date of the warrant.

We considered the self-incrimination issue at length within the last year in People v. Drieslein (1985) 170 Cal.App.3d 591, 216 Cal.Rptr. 244.   For the reasons therein set forth, we must reverse the conviction herein.

But for the guidance of the trial court upon any retrial, we will deal with appellant's remaining contention.

FACTS

On March 25, 1983, Detective William H. Dworin of the Los Angeles Police Department interviewed Raul (Raul or the victim), who was then 19 years old.   Raul told the detective he had engaged in sexual acts with defendant at defendant's home during the time when Raul was 12 to 16 years of age.   He also told the detective of defendant's use of photographs of others to arouse Raul, defendant's taking of photographs of Raul and himself in sexual acts, defendant's dark room in his attic, and the storage of photographs under defendant's bed or elsewhere in his bedroom or in his attic.   All of the criminal conduct charged happened more than three years before the interview.   Defendant is Raul's uncle.

Dworin submitted an affidavit in support of a request for issuance of a search warrant of defendant's home.   The affidavit narrated his experience in the juvenile division of the police department for ten years, over 750 investigations involving sexual exploitation of minors, examination of over 10,000 letters between pedophiles ¹ “describing their admitted sexual conduct with children and the manner in which they exploited said children for sexual gratification,” and examination of over 30,000 photographs of children engaged in sexual activities.

Dworin's affidavit explained how pedophiles retain and use photographs, magazines, movies, and correspondence “in excess of twenty years, and that this material has been shown to juveniles to lower the victims [sic] inhibitions.”

A search warrant issued on the same day as Dworin interviewed the victim.   The warrant authorized a search of defendant's house and enumerated as the property to be seized, photographs, negatives, slides depicting juveniles who were being exploited, including but not limited to Raul, magazines depicting nudity or sexual activity used to lower the inhibitions of juveniles, cameras and photographic equipment, records tending to identify juveniles and items of identification which would tend to identify the person in control of the premises.

The search warrant was executed in March.²

Defendant met with Dworin about ten days after the search of his home.   In the interview, defendant admitted fondling the genitals of the three youths who testified at the preliminary hearing 11 months later, and a fourth boy, all four of whom were named in the information.   For reasons not disclosed in the record, the preliminary hearing did not take place until almost a year after the search warrant was executed.

A preliminary hearing was conducted in Los Angeles Municipal Court on March 13, 1984.   Three boys, then ages 10 to 13, testified as to lewd massages of their penises by defendant at his home and one boy testified to witnessing such massage of a fourth boy.   Raul was neither a witness at the preliminary hearing nor was he identified as a participant in or the victim of any sexual acts.   The three witnesses testified that they came to be at defendant's home because he was their elementary school teacher or scout leader or both.   A five-count information alleging lewd acts with the subject four boys was filed.

Defendant's motion to quash and traverse the search warrant and to suppress evidence under Penal Code section 1538.5 was heard on October 12, 1984.   The only witness was Dworin.

The evidence at the hearing was consistent with Dworin's affidavit both as to the lapse of time between Raul's last sexual contact with defendant and Raul's report to Dworin of defendant's exhibition to Raul of photographs of other juveniles and of Raul.   There was no evidence of the nature of the photographs seized, and the officer testified he did not believe any photographic equipment was seized.   The defendant questioned the witness about the contents of the affidavit.   No seized evidence was identified, marked or offered.

The record below does not disclose whether the search yielded photographs of Raul or of any of the three young witnesses at the preliminary examination, or whether the identity of the three witnesses was gleaned from the search results.   Thus, we cannot tell from the record how, if at all, the seizure gave the prosecution fruit, poisoned or pure, to enable it to file a criminal complaint charging appellant with the crimes involving the four named victims.

The trial court denied the motion to quash stating “I am persuaded that based upon the information in the affidavit, staleness is not an issue in this kind of case.”

Immediately upon the denial of the motion, defendant agreed to submit the issue of his guilt or innocence based upon the transcript of the preliminary examination “and the evidence seized pursuant to the search warrant and [his] statements.”   Defendant was asked to and did waive his right to confront and cross examine witnesses, his right to a speedy trial, and before the submission of evidence on November 2, heard the district attorney tell him (and he acknowledged that he understood) it was “more than likely, almost certain that you will be found guilty.”   He had waived his right to trial by jury before the motion to suppress.

Although the clerk's minutes of October 12 recite at line 42 that defendant “waives privilege against self-incrimination,” nothing in the record confirms such waiver, and no claim is made by respondent that appellant was asked to waive or did waive his privilege against self-incrimination.

In addition to considering the transcript of the preliminary examination, which never was offered into evidence, the trial court heard testimony of one witness, Detective Dworin, at the trial.   Dworin testified that on April 4, 1983, some few days after the search warrant was executed, defendant voluntarily came to his office for an interview.

At the interview, after being advised of his rights, defendant confessed to “fondling” the genitals of the three boys who testified later at the preliminary hearing, and the fourth boy later named in the information.

Defendant was found guilty on all five counts in the information.   The special allegation in the second count, of masturbation of a minor, was found not to be true because not proven beyond a reasonable doubt.   Defendant was sentenced to prison, and this appeal followed.

THE INADEQUATE WAIVER

 As noted earlier in this opinion, we discussed self-incrimination and slow pleas in Drieslein.   That case involved submission of the issue of guilt on the transcripts of the preliminary hearing and Penal Code section 1538.5 motion without the defendant waiving his right not to incriminate himself.   We explained therein at pages 597 to 599, 216 Cal.Rptr. 244 why the prosecution's failure to obtain appellant's waiver of his right against self-incrimination on the record required reversal.

Respondent urges us to reach a different conclusion in the instant case based on one decision rendered since Drieslein which appears to be contrary.   It is People v. White (1985) 176 Cal.App.3d 158, 221 Cal.Rptr. 709.

In White, the defendant had two trials.   In the first, the jury did not reach a verdict.   He then waived his right to a jury trial and to confrontation and stipulated to submit the matter in part on the transcript of the first trial, with the second trial to be a court trial.   He was not asked to waive the privilege against self-incrimination.   At the court trial, each side called an additional witness who did not testify in the earlier proceeding.

The court in White found appellant had “waived the privilege in the first trial by taking the stand and testifying.  [Citation.]”  (Id., at p. 166, 221 Cal.Rptr. 709.)   While acknowledging that the waiver was effective only in the proceeding in which he testified, the court in White reasoned that defendant could not safely testify in the second trial without the risk of impeachment on account of admissions in the jury trial, so that exculpatory testimony was not available and inculpatory testimony, if any, was in the transcript of the first trial.

We stand on our conclusions and reasoning in Drieslein and incorporate them herein, to the end that the absence of the waiver of the privilege requires reversal of the judgment.

 THE AFFIDAVIT

 “As a general rule, information is stale, and hence unworthy of weight in the magistrate's consideration of an affidavit, unless the information consists 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.)   [Citation.]  No clear cut rule, of course, tells us when the time span must be deemed too attenuated.  ‘The length of the time lapse alone is not controlling since even a brief delay may preclude an inference of probable cause in some circumstances while in others a relatively long delay may not do so.   Nonetheless, there are obviously some limits.’  (Durham v. United States (9th Cir.1968) 403 F.2d 190, 194, fn. 6.)   The information given by Informant No. Two was over one year old;  the informant recites no special circumstances that would justify a man of ordinary prudence to conclude that the alleged illegal activity had persisted for more than a year.   Hence, the information was stale.”  (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393, 107 Cal.Rptr. 483, 508 P.2d 1131.)

Appellant relies on Alexander, supra, and People v. Nadell (1972) 23 Cal.App.3d 746, 755, 100 Cal.Rptr. 444, in arguing that the lack of any facts about criminal conduct in the three years prior to Dworin's affidavit, required suppression of all of the physical evidence gathered pursuant to the warrant, plus the statements made to Dworin days later.

The relationship of elapsed time to viability of search warrants appears to be a matter of reasonableness of the invasion of the privacy of the person suspected of criminal conduct.

The burden of proof to suppress the evidence seized was on appellant since the seizure was pursuant to a search warrant.  (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101, 104 Cal.Rptr. 226, 501 P.2d 234.)  “The evidence adduced in the section 1538.5 hearing susceptible of alternate inferences, should be construed in the light most favorable to the People where the motion has been denied.  [Citations.]”  (People v. Morton (1971) 21 Cal.App.3d 172, 176, 98 Cal.Rptr. 261.)

Appellant offered no evidence or argument regarding specific items seized.   While he had no obligation to identify such items in his motion, his failure to do so and the general rules favoring the ruling of the trial judge, cripple his appeal.

“Where the trial court has found probable cause for a warrantless arrest or the reasonableness of a search the appellate court will set aside such findings only if there is no substantial evidence in support.  [Citations.]  ․ As to the quantum of proof, the trial court in a section 1538.5 hearing need only be convinced that the officer's version is more probably true.  [Citation.]”  (People v. Orr (1972) 26 Cal.App.3d 849, 857, 103 Cal.Rptr. 266.)

We do not have to speculate as appellant asks us to do, that “his subsequent confessions ․ were no doubt influenced by the police discovery of incriminating physical evidence.”

Appellant argues staleness as to evidence of criminal acts with Raul.   He does not contend, in so many words, that since the then-statute of limitations, Penal Code section 800, subdivision (a), later repealed, apparently barred prosecution of appellant as to crimes committed more than three years before, the warrant should not have issued at all.³  But in substance, in raising a claim of staleness, he can be understood to be contending that the warrant was in aid of a fishing expedition, undertaken in the hope of locating current evidence to lead the authorities to other victims who could be the basis of criminal prosecution.

But, appellant failed to sustain his burden of proof relying only on the passage of time and nothing else.   No basis was shown for suppression of the April 4, 1983 confession.   The admissions were the only evidence from the March seizure identified or offered.

Since we conclude the burden of proof on appellant was not sustained, and that the confession should not be ordered suppressed, we need not address the claim of staleness as to unintroduced evidence.

Having failed to establish that the motion to suppress, quash and traverse should be granted, appellant is not entitled to a second opportunity to litigate such motion, notwithstanding the required reversal of the judgment.

ORDER

The judgment of conviction is reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion.

FOOTNOTES

FOOTNOTE.  

1.   Pedophilia is defined as “sexual perversion in which children are the preferred sexual object.”  (Webster's New Collegiate Dictionary (1981 ed.) p. 838.)

2.   Although the record discloses three separate evidentiary hearings before appellant was convicted, the preliminary examination March 13, 1984, the motion to suppress evidence and quash and traverse the search warrant October 12, 1984, and the court trial November 2, 1984, it does not appear that any property seized from defendant's home ever was offered in evidence.   At the hearing on the motion to suppress, the trial court asked what was sought to be suppressed and was told the defendant was seeking “to suppress all the evidence which was taken under the warrant.”   Included within the scope of the request for suppression were statements made by defendant to police officers.   The court pointed out no return to the search warrant was in the file.   He was given a property report, not the actual return and nothing more.   Defendant agreed the court could “examine” the report.   No evidence seized ever was identified in the record herein.On our own motion, we directed the superior court to deliver to us the entirety of its file and it complied.   The file contains an unmarked photocopy of a three-page police property report purporting to show the results of a search made at defendant's home on the afternoon of March 25, 1983.   The report lists among the personal property seized, a photo enlarger, pornographic magazines, slides, a projector, “photographs of boys,” negatives and video recordings.

3.   Under the version of Penal Code section 800 adopted in 1984, well after the events herein, the limitations period was extended to six years, since the maximum punishment for violation of Penal Code section 288, subdivision (a), is eight years.

SHIMER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KINGSLEY, Acting P.J., and McCLOSKY, J., concur.