P. v. Craig
Filed 12/22/09 P. v. Craig CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, Plaintiff and Respondent, v. CAROL CRAIG, Defendant and Appellant. | B210216 (Los Angeles County Super. Ct. No. TA096338) |
APPEAL from a judgment of the Superior Court of Los Angeles County. John J. Cheroske, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Defendant Carol Craig appeals from the judgment entered following her nolo contendere plea to possession of an assault rifle and a police baton. Defendant asks this court to review the sealed portions of a search warrant affidavit to determine whether the trial court erred by denying her motion to unseal, quash, and traverse the warrant and to suppress evidence seized pursuant to the warrant. She further contends that her rights to due process and the effective assistance of counsel were violated by the trial courts refusal to disclose the facts constituting probable cause for the search warrant. We affirm.
BACKGROUND
On March 25, 2008, officers of the Los Angeles Police Department searched defendants apartment pursuant to a warrant. The officers seized a loaded assault rifle and a police baton.
Defendant filed a motion to unseal, quash, and traverse the search warrant and to suppress the seized evidence. Defendant argued the warrant was stale because it was issued in 2006, but not executed until 2008. She further sought in camera review of the warrant affidavit pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). At the hearing on defendants motion, the trial court asked defense counsel to submit any questions he would like the court to ask the police officer affiant in camera. Defense counsel declined to do so. The court then conducted in camera proceedings during which it reviewed the sealed and unsealed portions of the affidavit in support of the warrant and examined the police officer affiant under oath. In open court, the court stated that it found that the sealing of a portion of the affidavit was necessary and proper and that the affidavit established probable cause. The court further noted that, based upon its review of the entire affidavit and its examination of the affiant, the court saw nothing that suggested any material omissions or misrepresentations. The court denied defendants motion in its entirety.
At the next court appearance, defendant pleaded nolo contendere to possession of an assault weapon (Pen. Code, 12280, subd. (b)) and misdemeanor possession of a deadly weapon (Pen. Code, 12020, subd. (a)(1)). The court placed defendant on probation.
DISCUSSION
1. Denial of defendants motion challenging search warrant
Defendant asks this court to review the sealed portions of the search warrant affidavit to determine whether the trial court properly denied her motion to unseal, quash, and traverse the search warrant and to suppress the seized evidence.
All or a part of a search warrant affidavit may be sealed when disclosure will reveal or tend to reveal the identity of a confidential informant. (Hobbs, supra, 7 Cal.4th at p. 971.) Because sealing a portion of the affidavit may prevent the defendant from making the showing normally required to challenge the issuance of a warrant, the Supreme Court has instructed that certain procedures should be followed when a confidential informant has been used. (Id. at p. 972.) If the defendant questions the issuance of such a warrant, the trial court must hold an in camera hearing at which the prosecutor may be present, but from which the defendant and defense counsel are ordinarily excluded. (Id. at pp. 972973.) Defense counsel should be afforded 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. (Id. at p. 973.) 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. (Ibid.)
If the trial court concludes the affidavit was properly sealed and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendants 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. Generally, in order to prevail on such a challenge, the defendant must demonstrate 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. (Hobbs, supra, 7 Cal.4th at p. 974, quoting Franks v. Delaware (1978) 438 U.S. 154, 155156 [98 S.Ct. 2674].) If the trial court determines that the materials and testimony before it do not support defendants charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. (Hobbs, at p. 974.)
If the trial court concludes the affidavit was properly sealed and the defendant has moved to quash the warrant, the court should proceed to determine whether, under the totality of the circumstances presented in the search warrant affidavit . . . there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. (Hobbs, supra, 7 Cal.4th at p. 975, quoting Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct. 2317].) If the court determines . . . that the affidavit and related materials furnished probable cause for issuance of the warrant . . . the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. (Hobbs, at p. 975.)
We have reviewed the search warrant and affidavit, including the sealed portion of the affidavit. Based on our independent examination of those materials, we conclude that it is not reasonably probable defendant would have prevailed on any aspect of her motion to unseal, quash or traverse the warrant or to suppress the seized evidence. The trial court acted well within its discretion in determining that valid grounds existed for maintaining the informants confidentiality and that sealing a portion of the affidavit was necessary in order to avoid revealing the informants identity. We have examined the entire affidavit for possible misleading statements or omissions and found nothing that leads us to suspect that any material misrepresentations or omissions were made. Finally, we conclude that the affidavit established probable cause for the issuance of the search warrant for defendants apartment. Accordingly, the trial court properly denied defendants motion to unseal, quash, and traverse the warrant and to suppress the seized evidence. With respect to defendants argument in her written motion that the warrant was void because it was issued in 2006, we note that although the issuing magistrate erroneously wrote 2006 when she dated the warrant, it is clear from the dates on the affidavit and the order to seal a portion of the affidavit that the warrant was issued on March 25, 2008, the same day it was executed. In addition, the facts set forth in the statement of probable cause pertained to 2008, not 2006.
2. Nondisclosure of facts constituting probable cause for issuance of warrant
Defendant contends that her rights to due process and the effective assistance of counsel were violated by the nondisclosure of the facts constituting probable cause for the search warrant. In support of her contention, she cites an unpublished finding and recommendation by a federal magistrate judge in Moeller v. Lockyer (E.D.Cal. Feb. 20, 2009, Civ. No. S-01-2351) 2009 WL 426089. Defendant fails to mention that the document she cites is merely a finding and recommendation by the magistrate judge to the district judge. She also fails to mention that the district court judge subsequently rejected the magistrate judges recommended finding that the trial courts use of the in camera procedures prescribed by Hobbs violated Moellers rights to due process and the assistance of counsel. (Moeller v. Lockyer (E.D.Cal. June 23, 2009, Civ. No. S-01-2351) 2009 WL 3169967, *4*5, *8.)
The constitutional concerns defendant raises were addressed and rejected in Hobbs, which we are bound to follow. (Hobbs, supra, 7 Cal.4th at pp. 966971.) In addition, we note that the United States Supreme Court has held that an in camera, ex parte review of confidential information does not violate a defendants right to due process. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 5961 [107 S.Ct. 989].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
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