Opinion
A147304
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ERNEST MOSLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 221095, 13021932)
Charles Ernest Mosley appeals from a judgment of conviction and sentence imposed after he entered a plea of guilty to robbery and receiving stolen property. He contends (1) the court erred in finding that police had a reasonable suspicion to detain him, and his continued detention became a de facto arrest not supported by probable cause; (2) the court should have dismissed the count for receiving stolen property or stayed the sentence on the count (Pen. Code, § 654); (3) Proposition 47 requires that the conviction for receiving stolen property be treated as a misdemeanor; and (4) we should review a sealed transcript regarding his Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Except where otherwise indicated, all statutory references are to the Penal Code.
We will order that the abstract of judgment be amended such that the sentence on the count for receiving stolen property is stayed pursuant to section 654. We will otherwise affirm.
I. FACTS AND PROCEDURAL HISTORY
A felony complaint filed in August 2013 charged Mosley with second degree robbery (§ 211; count 1) and buying or receiving stolen property (§ 496, subd. (a); count 2). The complaint also alleged that Mosley had two prior strike convictions under the Three Strikes Law (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)), three prior prison-term commitments (§ 667.5, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)), and probation ineligibility (§ 1203.085, subd. (b)).
A. Motion to Suppress Evidence
Mosley filed a motion to suppress the evidence obtained during his detention and the warrantless search of his person and vehicle. (§ 1538.5.) The court held an evidentiary hearing on the motion contemporaneously with the preliminary hearing.
1. Evidence
After midnight on August 6, 2013, Anthony Lai was talking on his iPhone while walking on Folsom Street, between 18th and 19th Streets, when someone shoved him from behind and took the iPhone from his hand. The robber threatened to shoot Lai if he did not turn over his wallet. Lai saw the robber's hand and a "gun shape" inside the sleeve of the robber's top, and the robber was pointing the apparent gun at Lai as he threatened to shoot. Lai was very afraid. When Lai replied that he did not have any money, the robber pushed him to the ground and took his wallet from his pocket. Lai pleaded with the robber to return his wallet because he needed his travel documents; Lai got the wallet back, but he could not recall whether he grabbed it or the robber threw it at him after finding no money in it.
Lai then ran to his home, and a housemate called police. Lai told the police that the perpetrator was an African-American man, in his mid-twenties, about 5'9" tall, with a medium to heavy build and wearing a dark-colored track suit or sweatshirt and dark-colored jeans.
At approximately 12:53 a.m. on August 6, 2013, San Francisco Police Officer Paul Wilgus responded to the reported robbery and contacted Lai. Using his housemate's iPhone, Lai logged into a "Find my iPhone" application (app) by entering his unique "Apple ID," in an attempt to locate his stolen iPhone. Lai showed Wilgus a map on the iPhone that depicted a blue dot on Folsom Street, between 23rd and 24th Streets, about three to four blocks from where Lai was robbed. Wilgus was familiar with the Find my iPhone app because he had used it in prior cases and had the app on his own iPhone. Wilgus's interview with Lai lasted about 15 minutes.
Officer Wilgus went to Folsom Street between 23rd and 24th Streets and observed an African-American male in dark clothing in the driver's seat of a parked vehicle, accompanied by a female in the passenger seat. No other person or traffic was in the area. Wilgus believed that the male (Mosley) matched Lai's description of the robber, although Mosley was wearing a t-shirt rather than a sweatshirt and, since Mosley was seated in the vehicle, the officer could not see his pants.
Officer Wilgus positioned his patrol car behind the vehicle and activated the patrol car's overhead lights. He approached the driver's side window, asked Mosley for his driver's license, and asked if he was on probation or parole. Mosley replied that he was on parole, which Wilgus confirmed using his mobile data computer at about 1:15 a.m.
Officer Wilgus summoned backup and waited until three officers arrived. Mosley was then removed from his vehicle, searched, placed in handcuffs, and put in the back of a patrol car. The female passenger was pat-searched, and the vehicle was searched as well. No gun or cellphone was found at the time.
While Mosley remained in the back of the patrol car, Officer Wilgus returned to Lai's residence. Lai again used his housemate's phone to activate the Find my iPhone app, and the blue dot appeared on the map at the same location as Mosley's car.
Officer Wilgus took Lai and the housemate's iPhone to Folsom Street, where Mosley was detained. On the way, Wilgus read Lai the "cold show" admonition. Lai remained inside the patrol car and viewed Mosley, illuminated by a streetlight and light from the patrol car, standing next to an officer and in handcuffs. Lai immediately identified Mosley as the robber and said he recognized his face, lips, and clothing. Lai also recognized his general build and ethnicity. But because Mosley was wearing a "baseball hat" and not wearing the Nike sweatshirt worn by the robber, Lai was only about 75 percent sure of the identification.
At Officer Wilgus's instruction, Lai pressed a button on the Find My iPhone app on his housemate's iPhone and triggered a noise on Lai's iPhone. Wilgus heard a "beeping sound" coming from inside the molding of the gear shift area in Mosley's vehicle. Police found Lai's iPhone underneath the molding.
Officer Wilgus also found a dark Nike sweatshirt in the rear seat of Mosley's vehicle, which Lai recognized as the one worn by the robber. At that point, Lai was 100 percent certain that Mosley was the one who robbed him. (And Lai remained "100 percent" sure of his identification at the hearing.) Mosley was arrested and taken to the police station.
2. Trial Court's Ruling
The magistrate denied Mosley's motion to suppress, based on the totality of the circumstances including the description of the robber, the blue dot indicating the location on the Find my iPhone map, and the fact that Mosley's car was apparently the only one in the vicinity and the detention was not unduly prolonged. The court held Mosley over for trial on the charges.
B. Motion to Dismiss the Information
An information was filed in October 2013, asserting the same charges and allegations as the felony complaint.
In December 2013, Mosley renewed the suppression issues by filing a motion to dismiss the information pursuant to section 995. At the hearing on January 27, 2014, defense counsel argued that Mosley's initial detention was unreasonable under the Fourth Amendment, his detention was unlawfully prolonged for nearly 30 minutes to conduct the "cold show," and he was under de facto arrest once he was removed from his car and placed in handcuffs in the back of the patrol car. The court took the matter under submission to review the preliminary hearing transcript. In February 2014, the court denied the motion.
Mosley filed a petition for a writ of prohibition in this court (appellate number A141056), challenging the trial court's denial of the motions to suppress evidence and dismiss the information. In March 2014, we summarily denied the petition.
C. Pitchess Motion
In April 2014, Mosley filed a motion in the trial court to compel the production of police personnel records under Pitchess and Evidence Code section 1043. In May 2014, the court approved the parties' stipulated agreement regarding the production of confidential police files.
D. Guilty Plea and Sentence
In December 2015, Mosley entered into an "open" agreement to plead guilty to both counts of the information—robbery (§ 211) and receiving stolen property (§ 496, subd. (a))—and admit the allegations of the strike priors, prison priors, and felony priors, in exchange for the possibility that the court would dismiss the allegations of probation ineligibility and strike priors at sentencing and grant probation. In open court after inquiry by the judge, Mosley entered his pleas and admitted the allegations.
In January 2016, the court dismissed the allegations of probation ineligibility and the strike priors for sentencing purposes. Pursuant to the plea agreement, the court sentenced Mosley to a total term of 18 years in prison, comprised of the upper term of five years for the count one robbery conviction, with two consecutive five-year terms for the serious felony priors and three consecutive one-year terms for the prison priors. The court also imposed a two-year concurrent term for the count two receipt of stolen property conviction. The court suspended execution of Mosley's prison term and placed him on five years of formal probation under specified terms and conditions, including that he spend one year in county jail, serve the remainder of the probation period in a residential treatment program, and waive his pre-sentence custody credits.
Mosley filed a notice of appeal, indicating that the appeal is based only the denial of his motion to suppress evidence.
II. DISCUSSION
A. Motion to Suppress and Dismiss the Information
Where, as here, the trial court ruled on a renewed motion to suppress and motion to set aside the information based on the evidence presented to the magistrate at the preliminary hearing, we look directly to the magistrate's findings. (People v. Ramsey (1988) 203 Cal.App.3d 671, 678-679; People v. Laiwa (1983) 34 Cal.3d 711, 718.) We defer to the magistrate's factual findings if supported by substantial evidence, and rule de novo whether the police conduct was lawful based on those facts. (Ramsey, supra, at pp. 678-679; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223; People v. Saunders (2006) 38 Cal.4th 1129, 1134.)
1. Detention
As a threshold matter, we consider whether Mosley was detained by law enforcement. Consensual encounters between police and a citizen do not trigger Fourth Amendment scrutiny, but detentions do. (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) A person is detained if he or she is physically seized or submits to a display of authority that would lead a reasonable person to feel compelled to submit or not free to leave. (Ibid.; California v. Hodari D. (1991) 499 U.S. 621; United States v. Mendenhall (1980) 446 U.S. 544, 554.)
Mosley contends he was detained when Officer Wilgus maneuvered his police patrol car behind Mosley's parked vehicle, activated his overhead lights, approached Mosley, and requested and obtained his driver's license. Respondent contends the encounter was merely consensual. (See People v. Leath (2013) 217 Cal.App.4th 344, 352 [voluntary relinquishment of identification does not constitute a seizure if the encounter is consensual under the totality of the circumstances].) As Mosley points out, however, the prosecutor acknowledged in the trial court that there was a detention, stating in opposition to the section 995 motion that "[t]he People concede Mr. Mosley was detained when Officer Wilgus stopped behind a parked car and activated a red light." For purposes of this appeal, we will assume that Mosley was detained.
2. Reasonable Suspicion
For a detention to be lawful under the Fourth Amendment, the officer must be able to point to specific and articulable facts that, giving due weight to the reasonable inferences the officer may draw from those facts in light of experience, reasonably warrant the intrusion. (See generally Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Souza (1994) 9 Cal.4th 224, 230 (Souza).) In particular, an officer may stop and detain a person for questioning or limited investigation if the officer has a "reasonable suspicion," based on specific and articulable facts, that some activity relating to crime has taken place or is occurring or is about to occur, and the person he intends to stop or detain is involved in that activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8; Souza, supra, 9 Cal.4th at p. 231 ["A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity."].)
By the time Officer Wilgus detained Mosley, he was aware of the following articulable facts: (1) Lai reported that an armed perpetrator forcibly took his iPhone from him; (2) Lai described the robber as an African-American male in his mid-twenties, about 5' 9" tall with a medium to heavy build; (3) the robber was wearing dark-colored clothing, including a dark sweatshirt or track suit and jeans; (4) the Find my iPhone app displayed a blue dot on Folsom Street between 23rd and 24th Streets, just about four blocks away from the crime, after Lai's Apple ID was entered into the app; (5) minutes later, and roughly 30 minutes after the crime, Mosley was observed in the area depicted by the blue dot; (6) Mosley matched the victim's description of the robber, as an African-American male wearing a dark shirt; and (7) Mosley was the only male Wilgus saw in the area, there being no pedestrians on the street.
The time between the robbery and Officer Wilgus's observation of Mosley was about one-half hour. Lai testified that he got back to his residence and called police about five minutes after the robbery, he was on the phone with the police for about five minutes before Wilgus arrived, and Wilgus was at his residence for about 15 minutes before he left.
Based on the totality of the circumstances, it was reasonable for Officer Wilgus to form a suspicion that Mosley was involved in the robbery, such that he could detain Mosley to investigate. (See, e.g. People v. McCluskey (1981) 125 Cal.App.3d 220, 226 [reasonable suspicion to stop lone vehicle traveling from area of robbery reported minutes earlier, where the officer believed the passenger, a 20-year old Mexican male with dark hair and a dark jacket, matched the description of a robber as a 19-21 year old Mexican male with brown hair and blue jacket].)
Mosley's arguments to the contrary are unpersuasive.
a. General Description
Mosley contends the only similarity he had to the described robber—as far as Officer Wilgus could tell at the time of the detention—was that he was a young African-American male. Since Wilgus spotted Mosley in a car, Wilgus could not have seen Mosley's pants, build, or height, and Mosley was wearing a t-shirt rather than a sweatshirt. Mosley argues that a general description of a perpetrator does not in itself provide justification for a detention. (See In re Tony C. (1978) 21 Cal.3d 888, 896-898 [officer's knowledge that "three male blacks" were being sought a day earlier for burglaries was insufficient to justify a stop of two African-American "school children" on a sidewalk in the neighborhood during the noon hour].)
The argument is meritless. Officer Wilgus knew more than the general description of the perpetrator. He knew that the Find my iPhone app displayed a blue dot on Folsom Street between 23rd and 24th Streets, just a few blocks from the crime scene, and Mosley was the only African-American male with a dark-colored top—indeed, the only male, period—that Wilgus observed in the area. Although Mosley's dark top was a t-shirt rather than a sweatshirt, minor discrepancies between the person detained and the victim's description of a robber do not preclude a finding that the officer's suspicion was reasonable. (See People v. Smith (1970) 4 Cal.App.3d 41, 48-49 [discrepancy in year of car and number of suspects].)
Mosley points out that he was found with a female in a parked vehicle rather than alone on foot; he was located between 23rd and 24th Streets on Folsom Street, while Lai said the robber headed toward 18th Street; and the block of Folsom Street on which Mosley was spotted was lined with residences and parked cars. The question, however, is not whether Officer Wilgus knew enough to prove Mosley's guilt beyond a reasonable doubt, but merely whether there was a sufficient basis to suspect that he might be involved. The facts known to Wilgus in this case were sufficient.
b. The Blue Dot
Mosley argues that the magistrate sustained defense objections and granted defense motions to strike, precluding any witness from opining that the blue dot showed where Lai's iPhone was located. He contends the court ruled there was no foundation to establish that the blue dot was a reliable indicator of the location of Lai's iPhone, so Officer Wilgus's testimony that he saw the blue dot on Folsom Street between 23rd and 24th Streets did not provide a basis for finding he had a reasonable suspicion about Mosley.
It is true that the magistrate limited the testimony concerning the workings of the app. The magistrate ruled that "someone from Apple" would have to "say how it all works," but Lai could testify to "what [the app] did." (Italics added.) Similarly, the magistrate did not allow Officer Wilgus to testify that the "blue dot on the map . . . represented [the victim's stolen] phone," because "[w]e need an Apple engineer to tell us what it means." But the magistrate allowed Wilgus to describe what he saw, and Wilgus testified that he saw Lai's roommate "put some numbers and letters into a phone," "a map appeared" on the phone, and there was "a dot on the map which was located mid[-]block on Folsom in-between 23rd and 24th." He saw no other dot on the map.
The evidence that the magistrate admitted, based on Officer Wilgus's percipient observations, supported the conclusion that Wilgus's suspicion was reasonable. It was not irrational for Wilgus, who was familiar with the Find my iPhone app and had used it on his own phone, to consider the location of the blue dot on the Find my iPhone map and proceed to that area to find Lai's iPhone. (See People v. Barnes (2013) 216 Cal.App.4th 1508, 1520 (Barnes) ["the officers could certainly infer a reasonable possibility that if they could locate the [stolen] phone they would also locate the robber," and the "officers could verify the information passed on from [a cell phone company] if in the pinged areas the officers encountered a person matching the description provided by the victims"].)
Although the court in Barnes was concerned with whether the use of ping technology violated a defendant's reasonable expectation of privacy rather than the constitutionality of a detention, the court noted that, as relevant here, "[c]orrelating defendant's observed movements with both the GPS location and the victims' description provided [the police officers] with ample reasonable suspicion for a detention. [Citation.]" (Barnes, supra, 216 Cal.App.4th at p. 1520.) --------
c. Kelly-Frye
Mosley next argues that tracking a suspect's movements through cell phone tracking information is new to science and the law, and there was no foundation laid at the hearing for the admissibility of the blue dot information under People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F.1013.
Mosley does not cite anywhere in the record that defense counsel objected on the ground of Kelly-Frye. The matter is therefore not preserved for review. (Barnes, supra, 216 Cal.App.4th at p. 1519.) Moreover, the question in this appeal is not whether the blue dot information would be admissible at trial under Kelly-Frye to establish Mosley's guilt, but whether the blue dot information was part of what Officer Wilgus could consider in forming a reasonable suspicion sufficient for further investigation. As explained ante, it was.
Mosley also asserts that his review of jurisdictions in which courts have relied on cell phone ping information reveals that a ping can correspond to a "fairly large area." (See, e.g., Barnes, supra, 216 Cal. App. 4th at p. 1511 [officer testified that he had been informed by telephone company that pinging would "find a general location within [15] yards or [15] meters of where the phone was")].) But the cases Mosley cites addressed the range when pinging a cell phone, not when using the Find my iPhone app. (Ibid.) Furthermore, there was no evidence in this case concerning the size of the area to which a blue dot on a Find my iPhone map corresponds. And even if we accepted the 15-meter estimate referenced in Barnes, there was no evidence that any male besides Mosley was within 15 meters of the area indicated by the blue dot.
d. Officer Wilgus Did Not Take The Blue Dot With Him
Mosley observes that Officer Wilgus did not take the device that gave him access to the Find My iPhone app with him when he first left Lai's residence and went to Folsom Street, so when Wilgus initially saw and detained Mosley, he did not know that the Find My iPhone map still showed the blue dot in that location. But Wilgus did know that the blue dot, and possibly the iPhone, was in that location minutes before, and there was no testimony that any male besides Mosley was in that area.
e. Mosley's Parole Status
Finally, Mosley argues that his parole status did not justify the initial detention because Officer Wilgus was unaware of it until after the detention began. (Citing People v. Sanders (2003) 31 Cal.4th 318, 335.) However, we do not rely on Mosley's parole status to conclude that Wilgus had a reasonable suspicion to detain Mosley. The significance of Mosley's acknowledgement of his parole status is that the police could then conduct a lawful parole search. (See Samson v. California (2006) 547 U.S. 843, 852; People v. Schmitz (2012) 55 Cal.4th 909, 916.)
3. Prolonged Detention as De Facto Arrest
A detention must last no longer than is necessary to effectuate its purpose. (People v. Celis (2004) 33 Cal.4th 667, 674.) When the detention becomes so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop, it becomes a de facto arrest requiring probable cause. (See ibid.) "[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances." (Id. at pp. 674-675.)
Mosley argues that, once no contraband was found during the search of Mosley, his passenger, and his vehicle, the continued detention of Mosley for over half an hour, in handcuffs and in the back of the patrol vehicle as Officer Wilgus brought Lai to the scene for the "cold show," became a de facto arrest without probable cause. Therefore, he maintains, evidence of the subsequent recovery of Lai's iPhone from Mosley's vehicle should have been suppressed. We disagree.
The evidence supports the trial court's conclusion that the police did not unreasonably prolong Mosley's detention such that it became a de facto arrest. When the stolen iPhone was not recovered during the search of Mosley's person and car, it made sense for Officer Wilgus to continue the investigation by returning to the victim's residence to verify that the iPhone map still showed a blue dot at Mosley's location, and, when it did, bringing Lai there for a "cold show" and bringing the housemate's iPhone to activate the Find my iPhone locator sound. In fact, bringing Lai to the scene of Mosley's detention to conduct the "cold show" was a less intrusive and more reasonable alternative than taking Mosley to the police station or Lai's residence for the identification. (See People v. Harris (1975) 15 Cal.3d 384, 391; In re Richard W. (1979) 91 Cal.App.3d 960, 970.) Mosley does not establish that the time spent in this regard was unduly long under the circumstances.
Mosley fails to demonstrate error in the denial of the suppression motion and motion to dismiss the information.
B. Section 654
Mosley contends the court should have dismissed the count two conviction for receiving stolen property, or stayed the sentence imposed on count two under section 654, because it was duplicative of the count one robbery. Respondent agrees that the sentence should have been stayed.
A person cannot be convicted of both taking and receiving the same property. (See People v. Ceja (2010) 49 Cal.4th 1, 5.) But where, as here, the defendant has pleaded guilty to both counts, the conviction on the duplicative count cannot be reversed because that would directly challenge the validity of an integral part of the plea itself and is barred by the lack of a certificate of probable cause. (See People v. Cuevas (2008) 44 Cal.4th 374, 379-384.)
However, multiple punishment for the same act, or for acts arising out of the same course of conduct, is prohibited by section 654. Section 654 provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Here, the decision whether to impose a concurrent sentence on count two, or to impose but stay the sentence on count two, was left to the court in Mosley's open plea.
Respondent agrees the court should have imposed, but stayed execution of, the two-year midterm on count two. (People v. Jones (2012) 54 Cal.4th 350, 353 [incorrect to impose concurrent sentences if section 654 applies to prohibit multiple punishment; proper procedure is to sentence defendant for each count and stay execution of the sentence on the conviction to which section 654 applies].) We will modify the abstract of judgment accordingly. (§ 1260.)
C. Proposition 47
Mosley contends the trial court erred by imposing a two-year felony prison sentence for the count two conviction for receiving stolen property (§ 496, subd. (a)). By the time Mosley was sentenced in 2016, Proposition 47 had amended section 496, subdivision (a) to require a misdemeanor sentence if the value of the stolen property did not exceed $950. (§ 496, subd. (a); § 1170.18, subd. (a).) Although Mosley committed the offense before the effective date of the amendment, he urges that the statute should still apply to him based on principles of retroactivity (citing In re Estrada (1965) 63 Cal.2d 740) and equal protection. Respondent disagrees and points out that the issue of the retroactive application of Proposition 47 is pending review in People v. Valenzuela, review granted March 30, 2016, S232900; People v. Williams, review granted May 11, 2016, S233539; People v. Carrea, review granted April 27, 2016, S233011; and People v. Ruff, review granted May 11, 2016, S233201.
We need not resolve these issues. Although section 496, subdivision (a) now provides that receiving stolen property is only punishable as a misdemeanor if the value of the property does not exceed $950, Mosley does not cite to any point in the record where it was established that the value of the stolen iPhone was $950 or less. We are confined to the record on appeal.
D. Pitchess
In April 2014, Mosley filed a Pitchess motion for discovery of the personnel records of four San Francisco police officers involved in his arrest. The San Francisco Police Department and Mosley thereafter entered into a stipulation for the trial court to conduct an in camera review of records in the categories of dishonesty, fabrication of evidence and/or improper identification procedures and, as to Officer Wilgus, allegations of unlawful detention or arrest. Pursuant to the stipulation, the police department was to deliver relevant material to the court by May 29, 2014, and the material determined by the court to be disclosed would be provided to the defense by June 12, 2014.
On May 15, 2014, the court held an in camera hearing and ordered that the transcript be sealed and filed under separate cover. In the course of this appeal, the sealed transcript has been lodged in this court. The trial court also approved the stipulation by the police department and Mosley regarding the production of the material. The record in this appeal does not reflect any additional ruling or objection by Mosley with respect to the Pitchess motion.
Mosley asks this court to independently review the sealed transcript of the in camera hearing to determine if the trial court followed appropriate procedures and exercised its discretion appropriately. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
As an initial matter, because this appeal was taken after a guilty plea and no certificate of probable cause was obtained, we review the Pitchess proceedings only to the extent the Pitchess motion was intertwined with issues raised under section 1538.5. (People v. Hobbs (1994) 7 Cal.4th 948, 955-956; People v. Collins (2004) 115 Cal.App.4th 137, 149-151.) Similarly, while the notice of appeal indicates the appeal is based only on the order denying the motion to suppress evidence under section 1538.5, we will construe the notice broadly to include a challenge to any Pitchess ruling related to the suppression issues.
We have reviewed the sealed transcript of the in camera hearing conducted on May 15, 2014, and find no abuse of discretion by the trial court.
III. DISPOSITION
The abstract of judgment is modified to provide that the sentence imposed on count two under Penal Code section 496, subdivision (a) is stayed pursuant to Penal Code section 654. As so modified, the judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.