People v. Alvear CA2/4

Filed 10/5/16 P. v. Alvear CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B264603
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA427935)
v.
LINO ALVEAR
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert
Vanderet, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of Appeal, for Defendant
and Appellant Lino Alvear.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Abtin
Amir, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant Lino Alvear appeals a judgment convicting him of possession for sale
of cocaine, a controlled substance (Health & Saf. Code, § 11351). The evidence against
defendant was seized pursuant to a search warrant based upon information provided by a
confidential informant (CI) and contained in the sealed portion of the supporting
affidavit. Defendant’s motion to unseal, quash and traverse the search warrant under
People v. Hobbs (1994) 7 Cal. 4th 948 (Hobbs) was denied after the trial court reviewed
the sealed portion of the affidavit in camera. Defendant challenges the denial of his
motion to unseal, quash and traverse. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On July 17, 2014, Officer Bill Wilson and more than a dozen other officers of the
Los Angeles Police Department (LAPD) executed a search warrant at an apartment on
West 60th Street in Los Angeles. The officers forced entry after defendant answered the
door but said he was unable to open the security screen door. When the officers entered
the apartment, defendant and his fiancée were present in the living room and their five
young children were elsewhere in the residence.
Officer Wilson searched the closets in the living room and found an unlocked
plastic gun case containing a .45-caliber semiautomatic pistol and a loaded magazine.
Officers also found additional boxes of ammunition, jewelry and $852 in cash. In the
kitchen, officers discovered an Ajax can with a false bottom containing 27 plastic baggies
of cocaine totaling 5.82 grams. Another baggie containing cocaine was found in
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defendant’s vehicle. After receiving Miranda warnings and waiving his rights,
defendant told officers that he bought a large quantity of cocaine for personal use. also
told officers that the firearm found in his closet was registered in his name and that he
kept it to protect himself and his family.
The warrant authorizing the search of defendant’s home was obtained based on the
affidavit of Officer Wilson, which included a “Confidential Attachment” that was sealed
by the magistrate in order to protect the identity of a CI. The unsealed portion of the
1
Miranda v. Arizona (1966) 384 U.S. 436.
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affidavit describes Officer Wilson’s professional background, training and experience. It
also describes how LAPD surveillance of the defendant’s home confirmed that he lived at
the specified address and drove a particular vehicle. The unsealed portion of the affidavit
merely states that Officer Wilson “used Department resources to investigate” the
defendant. The sealed portion contains information regarding the CI’s background and
experience working with law enforcement on prior narcotics investigations. It also
contains detailed information about the defendant and contraband alleged to be in his
possession.
Defendant moved to unseal, quash and traverse the warrant and to suppress the
seized evidence pursuant to Hobbs, supra, 7 Cal. 4th 948. On October 27, 2014, the trial
court indicated that the parties were present in court to hear defendant’s motion to quash
and traverse under Hobbs. The court stated: “I have reviewed the sealed portion of the
warrant. I find that it was properly sealed, and the motion to unseal is denied. I also find
that there is sufficient cause for issuance of the warrant, and there is no basis for me to
grant the motion to traverse.” The court accordingly denied defendant’s motion to
unseal, quash and traverse.
On April 7, 2015, the Los Angeles County District Attorney’s Office filed an
amended information charging defendant with possession for sale of a controlled
substance (Health & Saf. Code, § 11351) with a special allegation that he committed the
offense while personally armed with a firearm (Pen. Code, § 12022, subd. (c)).
Defendant pled not guilty and denied the special allegation.
Following a bench trial, the court found defendant guilty of possession for sale of
a controlled substance, but found the allegation regarding the firearm to be not true. The
court suspended the imposition of sentence and placed defendant on three years formal
probation with credit for one day of county jail. Defendant also was ordered to perform
60 days of Caltrans service and pay various assessments and fines. Defendant filed a
timely notice of appeal.
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DISCUSSION
On appeal, defendant contends that Hobbs requires this court to “conduct an
independent review of the sealed in camera proceedings and search warrant affidavit” to
determine whether the affidavit was properly sealed, contains material false statements or
omissions, and establishes probable cause to support the issuance of the search warrant.
Respondent agrees that such review is appropriate. After reviewing the sealed portion of
the affidavit, and for the reasons discussed below, we conclude the trial court properly
denied defendant’s motion to unseal, quash and traverse the search warrant.
The Hobbs Procedure
The common law informant’s privilege is codified in Evidence Code section
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1041, which provides that a public entity may refuse to disclose the identity of a police
informant if disclosure would be against the public interest. The statute further provides
that when a search warrant is valid on its face, a public entity bringing a criminal
proceeding may establish the legality of the search without revealing to the defendant any
official information or an informant’s identity. (§ 1042, subd. (b).)
In Hobbs, our Supreme Court “conclude[d] that, taken together, the informant’s
privilege (§ 1041) . . . and the codified rule that disclosure of an informant’s identity is
not required to establish the legality of a search pursuant to a warrant valid on its face
(§ 1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit
may be sealed if necessary to implement the privilege and protect the identity of a
confidential informant.” (Hobbs, supra, 7 Cal.4th at p. 971.) The court also recognized
and addressed “the inherent tension between the public need to protect the identities of
confidential informants, and a criminal defendant’s right of reasonable access to
information upon which to base a challenge to the legality of a search warrant.” (Id. at
p. 957.)
When a search warrant affidavit has been fully or partially sealed, Hobbs
prescribes certain procedures in order to “strike a fair balance between the People’s right
2
All further undesignated statutory references are to the Evidence Code, unless
otherwise specified.
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to assert the informant’s privilege and the defendant’s discovery rights.” (Hobbs, supra,
7 Cal.4th at p. 972; see also People v. Galland (2008) 45 Cal. 4th 354, 363-365 (Galland
II) [describing Hobbs procedure].) The court in Hobbs instructed that “[o]n a properly
noticed motion by the defense seeking to quash or traverse the search warrant, the lower
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court should conduct an in camera hearing” pursuant to section 915, subdivision (b) and
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People v. Luttenberger (1990) 50 Cal. 3d 1, 20-24. (See Hobbs, at p. 972.) “The
prosecutor may be present at the in camera hearing; defendant and his counsel are to be
excluded unless the prosecutor elects to waive any objection to their presence.” (Id. at p.
973.) However, the court should afford defense counsel “the opportunity to submit
written questions, reasonable in length, which shall be asked by the trial judge of any
witness called to testify at the proceeding.” (Ibid.)
At the in camera hearing, the trial court must first determine whether the affidavit
was properly sealed. (Hobbs, supra, 7 Cal.4th at p. 972.) “It must first be determined
3
Section 915, subdivision (b) provides that when a court is ruling on an informant’s
privilege claim under sections 1041 and 1042 and is unable to do so without requiring
disclosure of the assertedly privileged material, it may conduct an in camera hearing
where the information is disclosed to the court.
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In Luttenberger, the defendant challenged the veracity of factual statements in a
search warrant affidavit that was based on information provided by a CI. (People v.
Luttenberger, supra, 50 Cal.3d at p. 8.) Defendant sought a Franks hearing (Franks v.
Delaware (1978) 438 U.S. 154) to determine whether the affidavit included false
statements, but because the identity of the CI was unknown, defendant was unable to
make the “‘substantial preliminary showing’ that (1) the affidavit included a false
statement made ‘knowingly and intentionally, or with reckless disregard for the truth,’
and (2) ‘the allegedly false statement is necessary to the finding of probable cause.’”
(Luttenberger, at p. 10; quoting Franks, at p. 156.) In order to implement Franks in cases
involving a CI, Luttenberger relaxed the preliminary showing requirement and
established an in camera review and discovery procedure. (See Luttenberger, at pp. 21-
24). The defendant must offer evidence that casts a reasonable doubt on the veracity of
statements made by the affiant, and must raise a substantial possibility that the allegedly
false statements were material to the probable determination. (Id. at pp. 21-23.) If this
preliminary showing is satisfied, the trial court should then conduct an in camera review
of the police records specified by the defendant to determine whether they support the
allegations of material misrepresentations or omissions. (Id. at p. 24.)
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whether sufficient grounds exist for maintaining the confidentiality of the informant’s
identity. It should then be determined whether the entirety of the affidavit or any major
portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to
avoid revealing the informant’s identity.” (Ibid.) If the court “finds that any portion of
the affidavit sealed by the magistrate can be further redacted, and the remaining
excerpted portion made public without thereby divulging the informant’s identity, such
additional limited disclosure should be ordered.” (Id. at p. 972, fn. 7.)
If the trial court determines the affidavit was properly sealed, it then must consider
defendant’s motion to traverse and quash based on “the public and sealed portions of the
search warrant affidavit, including any testimony offered at the in camera hearing.”
(Hobbs, supra, 7 Cal.4th. at p. 974.) In ruling on the motion to traverse, the court must
determine whether “the affidavit included a false statement made ‘knowingly and
intentionally, or with reckless disregard of the truth,’ and [whether] ‘the allegedly false
statement is necessary to the finding of probable cause.’” (Ibid., quoting Franks v.
Delaware, supra, 438 U.S. at pp. 155-156.) In ruling on the motion to quash, the trial
court must determine whether the affidavit furnished probable cause for the issuance of
the warrant, that is, “whether, under the ‘totality of the circumstances’ . . . there was ‘a
fair probability’ that contraband or evidence of a crime would be found in the place
searched pursuant to the warrant.” (Id. at p. 975, quoting Illinois v. Gates (1983)
462 U.S. 213, 238.) If the court determines there is a “reasonable probability” that the
defendant will prevail on the motion to traverse or quash, the prosecutor must either
disclose the sealed materials to the defense or suffer the entry of an adverse order on the
motion. (Id. at pp. 974-975.)
Because the defendant will be ignorant of the content of the sealed portions of the
affidavit, the court “must take it upon itself both to examine the affidavit for possible
inconsistencies or insufficiencies regarding the showing of probable cause, and inform
the prosecution of the materials or witnesses it requires.” (Hobbs, supra, 7 Cal.4th at
p. 973.) These “materials will invariably include such items as relevant police reports
and other information regarding the informant and the informant’s reliability.” (Ibid.)
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The court “may, in its discretion, find it necessary and appropriate to call and question
the affiant, the informant, or any other witness whose testimony it deems necessary to
rule upon the issues. [Citations.]” (Ibid.) Finally, the court noted that “[i]n 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. [Citations.]” (Id. at 975.)
Standard of Review
Citing Hobbs, defendant asserts we must conduct an “independent review” of the
sealed record and review the trial court’s denial of his motion to unseal, quash and
traverse de novo. Respondent agrees that independent review of the sealed materials is
appropriate, but maintains that Hobbs prescribes an abuse-of-discretion standard of
review. The parties’ disagreement is understandable because the standard under Hobbs is
unclear. Our Supreme Court concluded the “trial court acted within its sound discretion
in conducting its own in camera review of the sealed materials . . . and in thereafter
denying defendant’s motions to traverse and quash the search warrant.” (Hobbs, supra, 7
Cal.4th at p. 976.) However, the court also wrote: “We conclude, based on our review of
the record and sealed materials, that it was not reasonably probable defendant could
prevail on her motions to traverse or quash the search warrant.” (Id. at p. 977.)
We believe Hobbs is best understood to prescribe an abuse-of-discretion standard
to procedural aspects of the in camera review process. Clearly, the trial court must at
least review the sealed affidavit, determine whether the document was properly sealed,
and analyze the questions raised by defendant’s motions to quash and traverse. (See
People v. Galland (2004) 116 Cal. App. 4th 489, 490 (Galland I) [holding that “[t]he trial
court’s refusal to conduct the in camera review was a clear abuse of discretion under
[Hobbs]”].) However, the scope and handling of the in camera review process are
matters left to the trial court and reviewed for abuse of discretion. (See Hobbs, supra,
7 Cal.4th at pp. 973, 976.)
When it comes to the substantive issue of whether the trial court properly denied
defendant’s motions, our review is effectively de novo. Hobbs suggests we review the
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record and sealed materials in order to make the same determination as the trial court:
whether there is a “reasonable probability” that defendant could prevail on the motion to
quash or traverse. (Hobbs, supra, 7 Cal.4th at pp. 974, 977.) This analysis depends on
the respective legal standards for each motion. Because both of these motions serve to
attack the search warrant in order to suppress the seized evidence, the standard of review
that applies to a suppression motion is instructive: “When reviewing the grant or denial
of a motion to suppress, an appellate court must uphold the trial court’s express or
implied findings of fact if the facts are supported by substantial evidence. However, we
use our independent judgment to determine whether those facts establish probable cause.”
(People v. Mikesell (1996) 46 Cal. App. 4th 1711, 1716; see also People v. Leyba (1981)
29 Cal. 3d 591, 597.) Where, as here, the trial court reviewed a sealed affidavit in camera,
and there are no findings of fact, we necessarily review the information in the sealed
record independently, and apply the relevant legal standard de novo. (See People v.
Martinez (2005) 132 Cal. App. 4th 233, 241 [holding that the trial court properly denied
defendant’s motion to unseal the warrant affidavit after an “independent review” of the
record and sealed materials and determining “there is no reasonable possibility defendant
could prevail on his motion”].)
Analysis
After conducting an independent review of the public and sealed portions of the
search warrant affidavit, we conclude the trial court properly denied defendant’s motion
to unseal, quash and traverse the search warrant. The trial court appears to have made
this determination solely based on its own in camera review of the sealed portion of the
affidavit. There is no indication in the public or sealed portions of the record that the trial
court convened an in camera hearing to question the prosecutor, Officer Wilson, or the
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CI. Nor is there any indication that the trial court requested any additional materials
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Defense counsel appears to believe that the trial court conducted an in camera
hearing and a sealed transcript of such a proceeding is available in the record on appeal.
The People note that “consistent with Hobbs, it appears that the trial court held an in
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such as police reports or other information regarding the CI.
We are satisfied that an in camera review of the sealed record was sufficient in this
case, and the trial court did not abuse its discretion in forgoing questioning the
prosecutor, affiant, CI, or any other witness. Although some courts have referred to the
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in camera hearing as “required” under Hobbs, we do not read the opinion to
affirmatively mandate a formal testimonial hearing in every case. On one hand, Hobbs
suggests that an in camera hearing is generally required to conduct the necessary review.
After describing the hearing procedure, the court noted that “[i]n all instances, a sealed
transcript of the in camera proceedings, and any other sealed or excised materials, should
be retained in the record . . . .” (Hobbs, supra, 7 Cal.4th at p. 975, italics added.)
Nevertheless, Hobbs stated only that the trial court “should” conduct a hearing under the
guidelines set forth in section 915, subdivision (b) and Luttenberger, supra, 50 Cal.3d at
pages 20 to 24. (Hobbs, supra, at p. 972.) Hobbs also stressed that the trial court has
“discretion” regarding whether it is “necessary and appropriate to call and question the
affiant, the informant, or any other witness whose testimony it deems necessary to rule
upon the issues.” (Id. at p. 973; see also Luttenberger, supra, at p. 21 [“[W]hether to
convene an in camera examination or to order discovery will remain a matter within the
trial court’s discretion. [Citations.]”].) In this case, we conclude the trial court did not
abuse its discretion in determining that a formal in camera hearing was unnecessary. (Cf.
Galland I, supra, 116 Cal.App.4th at p. 495 [holding that the trial court had “no
discretion to forgo the in camera review” required by Hobbs, but noting that the trial
judge had not reviewed the sealed portion of the warrant affidavit nor was the sealed
camera hearing and/or reviewed the public and sealed materials supporting the search
warrant in chambers.”
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In Martinez, the court noted that “[i]n cases where all or part of a search warrant
affidavit has been sealed and the defendant moves to traverse and quash the warrant, the
court is required to conduct an in camera hearing . . .” (Martinez, supra, 132
Cal.App.4th at p. 240, italics added.) However, whether Hobbs requires an in camera
hearing in every case was not at issue in Martinez, and the opinion contains no discussion
on this matter beyond a brief summary of the Hobbs procedure. (See id. at pp. 240-242.)
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document part of the record on appeal].)
Based upon our independent review of the sealed portion of the affidavit, we also
find the trial court properly denied defendant’s motion to unseal, quash and traverse the
search warrant. First, we agree with the trial court that the confidential attachment to the
affidavit was properly sealed since information in the sealed document, if disclosed,
could reveal the identity of the CI. It was not possible for the court to provide a redacted
version of the sealed document without putting the CI in jeopardy because the defendant
could have discerned his or her identity based on the facts surrounding the information
and the circumstances under which the information was gathered. Thus, the trial court
did not err in denying defendant’s motion to unseal the affidavit.
Second, based on our review of the sealed portion of the affidavit, we conclude
there is no reasonable probability that defendant would have prevailed on his motion to
quash or traverse. With regard to the motion to traverse, the sealed document contains no
inconsistencies or insufficiencies indicating that the affiant included a false statement
made “knowingly and intentionally, or with reckless disregard of the truth” that was
“necessary to the finding of probable cause.” (Franks, supra, 438 U.S. at pp. 155-156.)
Rather, information in the declaration was verified through police surveillance and the
fruitful search of his residence when the warrant was executed. The trial court therefore
correctly found no basis to grant the motion to traverse.
With regard to the motion to quash, we find the information contained in the
sealed portion of the affidavit furnished probable cause to issue the search warrant.
When evaluating probable cause, an informant’s tip is scrutinized in light of the “totality
of the circumstances” to determine whether “there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” (Gates, supra, 462 U.S. at p.
238.) The informant’s reliability and basis of knowledge are “highly relevant” to this
analysis; however, a deficiency in one of these elements “may be compensated for, in
determining the overall reliability of a tip, by a strong showing as to the other, or by some
other indicia of reliability.” (Id. at p. 233.)
In the sealed affidavit, Officer Wilson attested to the CI’s reliability based on his
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or her participation in multiple narcotics investigations over the previous six years
resulting in numerous arrests of persons involved in the sale of narcotics and possession
of illegal firearms. (E.g., People v. Mayer (1987) 188 Cal. App. 3d 1101, 1117 [affidavit
asserting that the informant “had given information to the affiant in excess of ten times
over the last two years resulting in the issuance of search warrants, the seizure of
controlled substances and the arrest of numerous suspects, establishes the reliability of
the informant.”].) The CI provided detailed information that was based on first-hand
knowledge. (Gates, supra, 462 U.S. at p. 234 [noting that a “detailed description of
alleged wrongdoing, along with a statement that the event was observed first-hand,
entitles [the informant’s] tip to greater weight than might otherwise be the case.”].) We
conclude that under the totality of the circumstances, there was a “fair probability” that
contraband would be found in the defendant’s residence based on the information
provided by the CI. (Id. at p. 238.) This conclusion is bolstered by the rule that doubtful
or marginal cases are to be resolved with a preference for upholding a search under a
warrant. (Mikesell, supra, 46 Cal.App.4th at p. 1716.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J. COLLINS, J.
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