P. v. Evans CA1/3

Filed 3/1/16 P. v Evans CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A144171
BURL EVANS,
(Contra Costa County
Defendant and Appellant. Super. Ct. No. 51319698)
Defendant Burl Evans was arrested on narcotics charges following a search of his
residence during which the police found, among other things, over 46 grams of heroin
and approximately 24 grams of cocaine base. The evidence was seized pursuant to a
search warrant based on information provided by a confidential informant. The
magistrate sealed portions of the search warrant application in order to protect the
identity of the confidential informant. Following an in camera hearing and review of the
sealed portions of the search warrant application, the trial court refused to disclose the
sealed material in order to protect the identity of the confidential informant and denied
defendant’s motions to quash and traverse the search warrant. Defendant requests that
we conduct an independent review of the sealed material, including the transcript of the
in camera hearing held by the trial court, to determine whether the court erred in denying
his motions to quash and traverse the search warrant and his related request to disclose
the sealed portions of the warrant application. (People v. Hobbs (1994) 7 Cal.4th 948(Hobbs); People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger).) Having conducted
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the requested review, and finding no error in the trial court’s rulings, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2011, at 7:20 a.m., Detective Francisco Ramirez, accompanied
by “well over 10 to 15” other officers, arrived at defendant’s two-story residence to
execute a no-knock search warrant issued on probable cause to believe they would find,
among other things, heroin, drug paraphernalia, and any personal property tending to
show defendant’s possession or control of contraband including personal correspondence.
Defendant was found in the upstairs master bedroom, placed in handcuffs, and escorted
downstairs. Ultimately defendant was escorted outside and Detective Ramirez spoke
briefly with the defendant.
Returning to the house, Detective Ramirez and other officers searched the master
bedroom. Located next to the head of the bed was a plastic-drawer organizer. Inside the
organizer’s drawers, the officers found approximately 24 grams of cocaine base (in 99
baggies in two plastic pill bottles inside a black bag), over 46 grams of heroin (in a knot-
tied plastic bag wrapped in some paper), pay owe sheets, and unopened mail addressed to
defendant at the residence. Elsewhere in the bedroom, the officers found an open box of
fold-top clear plastic baggies, additional pay owe sheets, a digital scale, and additional
mail addressed to defendant at the residence.
The Contra Costa County District Attorney filed an information charging that on
or about September 8, 2011, defendant possessed cocaine base for sale (Health & Saf.
Code, § 11351.5) and possessed heroin for sale with a related allegation that the heroin
weighed “14.25 grams or more” (Health & Saf. Code, § 11351; Pen. Code, § 1203.07,
subd. (a)(1)). The information also alleged that defendant had two prior serious felony
convictions under the Three Strikes law and had two prior felony convictions rendering
him ineligible for probation absent unusual circumstances. (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12, 1203, subd. (e)(4).)
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Before trial defendant filed motions to quash and traverse the search warrant,1
which were based on information provided by a confidential informant. As an integral
part of the motions, defendant sought disclosure of the contents of sealed portions of the
warrant application so as “to challenge the sufficiency” of facts to establish probable
cause, and “to traverse the warrant by attacking the veracity of those factual allegations.”
(Hobbs, supra, 7 Cal.4th at p. 957.) 2 In support of the motions, defendant argued that
the information in the unsealed portion of the warrant application did not demonstrate the
confidential informant’s reliability or credibility, or provide sufficient corroboration of
the confidential informant’s police-monitored “controlled buy” of heroin from defendant
(controlled buy).
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A motion to quash tests the existence of probable cause based on the four corners
of a search warrant affidavit, while a motion to traverse tests the validity of the
information set forth in the affidavit itself. (Pen. Code, § 1538.5, subds. (a)(1)(B)(i) &
(iii).)
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Defendant also filed a separate motion to disclose the identity of the confidential
informant on the ground that the informant was a material witness to defendant’s guilt or
innocence. Before the trial court ruled on the motion, it suspended the criminal
proceedings based on its doubt of defendant’s competence. After defendant was deemed
competent and criminal proceedings were reinstated, the motion to disclose the
confidential informant’s identity was argued and denied on October 1, 2014. As noted by
the Attorney General, the record does not contain the reporter’s transcript of the
October 1, 2014, hearing and defendant makes no argument specifically challenging the
ruling made at that hearing. Thus, on this appeal “our inquiry is necessarily limited to the
propriety of the denial of the motions to traverse and quash the warrant, and the denial of
defendant’s related request for discovery of the sealed materials in connection with those
motions.” (Hobbs, supra, 7 Cal.4th at p. 976; see Evid. Code, § 1042, subd. (b) [“where
a search is made pursuant to a warrant valid on its face, the public entity bringing a
criminal proceeding is not required to reveal to the defendant . . . the identity of an
informer in order to establish the legality of the search or the admissibility of any
evidence obtained as a result of it”]; Hobbs, supra, at p. 959 [“the identity of an
informant who has supplied probable cause for the issuance of a search warrant need not
be disclosed where such disclosure is sought merely to aid in attacking probable cause”];
Id. at pp. 962-963 [“the courts have sanctioned a procedure whereby those portions of a
search warrant affidavit which, if disclosed would effectively reveal the identity of the
informant, are redacted, and the resulting ‘edited’ affidavit furnished to the defendant”].)
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The trial court reviewed the sealed portion of the warrant affidavit and held an in
camera hearing during which Detective Ramirez, the affiant of the warrant application,
was questioned by the court. Following a review of the warrant application, including the
sealed material, as supplemented by Detective Ramirez’s testimony, the court denied the
motions to quash and traverse the search warrant and the related request to disclose the
sealed portions of the warrant application. The court determined it could not possibly
disclose the sealed material even in a redacted fashion without disclosing the confidential
informant’s identity because of the details that were provided in the sealed material as
supplemented by Detective Ramirez’s testimony. As to the challenges to the validity of
the search warrant, the court commented that during the in camera hearing Detective
Ramirez was questioned about his interactions with the informant and what happened at
the time of the controlled buy. The court was satisfied that there was independent
corroboration of the controlled buy and that defendant was the seller.
Following a jury trial, defendant was convicted of possession of cocaine base and
possession of heroin, with a true finding of the related weight allegation. In a separate
proceeding, the court found defendant had sustained two prior strike convictions and had
sustained felony convictions rendering him ineligible for probation except under unusual
circumstances. At sentencing, the court struck the prior strike convictions and imposed
concurrent terms of two years in state prison on the charged narcotics offenses.
Defendant was awarded 484 days actual custody credit and 484 days conduct credit.
Because credit for time served exceeded the imposed sentences, defendant was released
from custody. This timely appeal ensued.
DISCUSSION
In Hobbs, supra, 7 Cal.4th 948, our Supreme Court outlined the procedures to be
followed in resolving a challenge to the validity of a search warrant, where the magistrate
has sealed a portion of a search warrant affidavit. (Hobbs, supra, at pp. 971-975.) “On a
properly noticed motion by the defense seeking to quash or traverse the search warrant,
the [trial] court should conduct an in camera hearing . . . . (Id. at p. 972.) “[T]he court
must initially determine whether the affidavit is properly sealed, i.e., whether valid
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grounds exist for maintaining the informant’s confidentiality, and whether the extent of
the sealing is justified as necessary to avoid revealing his or her identity.” (Id. at p. 973.)
“If the affidavit is found to have been properly sealed, and the defendant has moved to
traverse the warrant, the court should then proceed to determine whether the defendant’s
general allegations of material misrepresentations or omissions are supported by the
public and sealed portions of the search warrant affidavit, including any testimony
offered at the in-camera hearing.” (Id. at p. 974.) “If the trial court determines that the
materials and testimony before it do not support defendant’s charges of material
misrepresentation, the court should simply report this conclusion to the defendant and
enter an order denying the motion to traverse.” (Ibid.) “Similarly, if the affidavit is
found to have been properly sealed and the defendant has moved to quash the search
warrant (Pen. Code, § 1538.5), the court should proceed to determine whether, under the
‘totality of the circumstances,’ presented in the search warrant affidavit and the oral
testimony, if any, presented to the magistrate, there was a ‘fair probability’ that
contraband or evidence of a crime would be found in the place searched pursuant to a
warrant. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct.
2317]; see also People v. Camarella (1991) 54 Cal.3d 592, 600-601 [286 Cal.Rptr. 780,
818 P.2d 63].)” (Hobbs, supra, at p. 975.) “If the court determines, based on its review
of all the relevant materials, that the affidavit and related materials furnished probable
cause for issuance of a warrant under Illinois v. Gates, supra, 462 U.S. 213, the court
should simply report this conclusion to the defendant and enter an order denying the
motion to quash. (Cf. Luttenberger, supra, 50 Cal.3d at p. 24; [People v.] Seibel [(1990)]
219 Cal.App.3d [1279,] 1299 [(Seibel)].)” (Hobbs, supra, at p. 975.) “In all instances, a
sealed transcript of the in camera proceedings, and any other sealed or excised materials,
should be retained in the record along with the public portions of the search warrant
application for possible appellate review. (Luttenberger, supra, 50 Cal.3d at p. 24;
Seibel, supra, 219 Cal.App.3d at pp. 1299-1300.)” (Hobbs, supra, at p. 975.)
Here, the parties do not dispute that the trial court followed the procedures
outlined in Hobbs, supra, 7 Cal.4th 948. As a reviewing court, our inquiry is limited to
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whether the trial court abused its discretion in denying the motions to quash and traverse
the search warrant and the related request to disclose the sealed portion of the warrant
application related to those motions. (Id. at p. 976.) Based on our review of the record,
including the sealed portions of the search warrant application and the transcript of the in
camera hearing held by the trial court, we see no abuse of discretion in the trial court’s
rulings. Consequently, there is no Hobbs error to correct on appeal.
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
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