People v. Kashani

Opinion

PUGLIA, P. J.

Defendant pled guilty to possession of cocaine (Health & Saf. Code, § 11350). This appeal challenges the denial of defendant’s motion to suppress evidence seized pursuant to a search warrant (Pen. Code, § 1538.5, subd. (m)). We will affirm.

The search warrant was issued by Superior Court Judge Kleaver acting as a magistrate. Claiming the judge had failed to read all the supporting material before issuing the warrant, defendant caused a subpoena to be served on Judge Kleaver commanding his attendance at the suppression hearing to testify. On motion of the People, the trial court quashed service of the subpoena on the ground defendant had not shown good cause to challenge the presumption of regularity attending issuance of the warrant. On appeal defendant contends she was prejudicially denied the opportunity to establish fatal irregularity by the magistrate in the issuance of the search warrant.

Defendant relies on the opinion of this court in

Kaylor

v.

Superior Court

(1980) 108 Cal.App.3d 451 [166 Cal.Rptr. 598], for the proposition that one attacking a search warrant has the absolute right to compel the testimony at the suppression hearing of the magistrate concerning the circumstances surrounding issuance of the warrant. In

Kaylor

we directed the trial court to suppress evidence seized under two search warrants issued on the strength of an affidavit incorporating 155 pages of material, primarily copies of police reports, many of which were illegible. At the suppression hearing the magistrate testified he had not read all the reports and could not recall which ones he had read. This court held the procedure used was constitutionally defective.

(Kaylor, supra,

at pp. 457-458.)

Kaylor

does not declare open season on all magistrates who issue search warrants. Apart from the fact there was no issue raised in

Kaylor

with respect to eliciting the magistrate’s testimony at the suppression hearing, substantial irregularity was apparent upon the face of the search warrant affidavit. No such claim is nor can it be made here. The search warrant with attached 14-page affidavit appears regular on its face. It is not rendered any less so by defendant’s bald assertion that Judge Kleaver did not read the affidavit before signing the search warrant.