People v. McDaniels

21 Cal.App.4th 1560 (1994) 27 Cal. Rptr.2d 245 THE PEOPLE, Plaintiff and Appellant,

v.

ANTHONY McDANIELS, Defendant and Respondent.

Docket No. A060751. Court of Appeals of California, First District, Division Two.

January 21, 1994. [1562] COUNSEL

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman and Gerald A. Engler, Deputy Attorneys General, for Plaintiff and Appellant.

Jay B. Gaskill, Public Defender, and Scott Spear, Assistant Public Defender, for Defendant and Respondent.

[1563] OPINION

PHELAN, J.

The People appeal an order dismissing an information which charged respondent, Anthony McDaniels, with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) on April 15, 1992. The dismissal was ordered on the court's own motion after it granted an evidence suppression motion and the People then indicated they were unable to go forward with the case. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On April 10, 1992, Oakland Police Officer Steven Kryger obtained a search warrant for the Subway Sandwich Shop located at 1312 Broadway in the City of Oakland. The warrant was authorized and signed by Judge Vernon Moore.

In pertinent part, the affidavit in support of the warrant recited: "Within the past seventy-hours, affiant met with an untested informant who ... must be referred to as X. X told me that X knows of persons selling rock cocaine from the Subway Sandwich Shop at 1312 Broadway." The affidavit recited the details of law enforcement officers driving X to the sandwich shop where he purchased one rock of cocaine from a person named Tony. Officer Kryger's affidavit concluded: "From the information contained in this affidavit, affiant has informed [sic] the opinion that cocaine and proceeds from narcotics sales are currently located inside the Subway Sandwich Shop at 1312 Broadway, Oakland, CA and cocaine and proceeds from narcotics sales are in the possession of Tony." The typed affidavit concluded by reciting, "Subscribed and sworn before me on ____." The date, April 10, 1992, was inserted in handwriting by Judge Moore. The time of day is not indicated. It was followed by the signatures of Officer Kryger and Judge Moore.