Brevetz

Appellant (sometimes referred to as Brevetz) pleaded guilty to count II of a two-count information after his motion under Penal Code section 1538.5 was denied. In count I, appellant was charged with possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a); in count II, he was charged with possession of cocaine for purpose of sale in violation of Health and Safety Code section 11351. After the plea of guilty to count II, the People dismissed count I.

In this appeal from the denial of the section 1538.5 motion (see Pen. Code, § 1538.5, subdivision (m)) appellant relies principally upon People v. Cook (1978) 22 Cal.3d 67 [ 148 Cal.Rptr. 605 , 583 P.2d 130 ]. Cook is a progeny of Theodor v. Superior Court (1972) 8 Cal.3d 77 [ 104 Cal.Rptr. 226 , 501 P.2d 234 ].

In Theodor , our Supreme Court held that “pursuant to a motion under Penal Code section 1538.5, a defendant may challenge the factual veracity of an affidavit in support of a [search] warrant and if statements contained therein are demonstrated to be false and if the affiant was unreasonable in believing the truth of such information, those facts must be excised from the affidavit…