P. v. Somerville

Filed 1/26/09 P. v. Somerville CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Los Angeles Superior Court. Jerry E. Johnson, Judge. Affirmed.

Richard L. Fitzer, 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, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

After the trial court denied his motion to disclose a sealed affidavit in support of a search warrant (see People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs)), Earnest Somerville agreed to plead no contest to one count of manufacturing cocaine base and one count of possession of a firearm by a felon, and admitted one prior strike conviction. In accord with his plea agreement, the trial court sentenced Somerville to state prison for a total term of 10 years. We affirm.

FACTS

At about 7:00 p.m., on January 11, 2007, a magistrate faxed a search warrant to Los Angeles Police Department Detective Christian Mrakich, authorizing the police to search Somervilles residence on South Croesus Avenue in Los Angeles. Upon issuing the warrant, the magistrate sealed Detective Mrakichs affidavit in support of the warrant. At about 8:30 p.m., Detective Mrakich and other officers executed the search warrant. During the search of Somervilles residence, the officers found $3,500 in cash, cocaine base, two pistols, and a number of items used to manufacture cocaine base, including a beaker, a pot, a metal strainer, and a digital scale, all with traces of cocaine residue.

In May 2007, the People filed an information charging Somerville with nine counts running the gamut from manufacturing cocaine base (count 1; Health & Saf. Code,  11379.6, subd. (a)), maintaining a cocaine house a place for selling or using cocaine (count 2), possession of cocaine base for sale (count 3), possession of a firearm by a felon (counts 4 & 5), to child endangerment (counts 6, 7, 8 & 9). The information further alleged that Somerville had been released on bail at the time he committed the charged offenses, that he had been personally armed with a firearm during the commission of the drug offenses, that he had two prior strike convictions (Pen. Code,  667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and that he had served four prior prison terms.

Somerville filed a Hobbs motion seeking disclosure of Detective Mrakichs sealed affidavit in support of the search warrant. Somervilles motion further sought to quash the warrant for lack of probable cause and to traverse the warrant for official misconduct in obtaining the warrant.

On June 19, 2007, the trial court conducted an in camera review of Detective Mrakichs sealed affidavit in accord with Hobbs, and concluded that unsealing the affidavit would clearly identify who the confidential informant is. The court denied Somervilles Hobbs motion to unseal the affidavit and ordered the affidavit resealed. The court also denied Somervilles motions to traverse and quash the search warrant.

On August 3, 2007, the trial court, the prosecutor, and Somervilles counsel discussed a few ground rules for trial, following which the court indicated that it was ready to have the jury brought in. The court then ordered a short recess to allow time for the venire to assemble in the courtroom, and, when the cause resumed, Somervilles counsel advised the trial court that the defense and prosecution had reached a disposition. Shortly thereafter, Somerville waived his constitutional trial rights and pled no contest as outlined at the outset of this opinion, and the trial court sentenced him to serve 10 years in state prison in accord with his plea agreement.

Somerville filed a timely notice of appeal.

DISCUSSION

I. The Motion to Quash Was Properly Denied

When a defendant moves to quash a search warrant, the trial court must review the totality of the circumstances, which were presented to the magistrate in the affidavit in support of the warrant, and assess whether the magistrate correctly determined there was a fair probability that contraband or evidence of a crime would be found at the location named in the place to be searched. If the trial court finds that the affidavit in support of the search warrant established probable cause for the issuance of the warrant, then the court will deny defendants motion to quash the warrant. (Hobbs, supra, 7 Cal.4th at p. 975, discussing Illinois v. Gates (1983) 462 U.S. 213, 238.)

A magistrates determination that probable cause existed for a search warrant is entitled to deferential review. (People v. Kraft (2000) 23 Cal.4th 978, 1041.) Under this standard, a reviewing court should not conduct a de novo review of the evidence, but rather, should only determine whether the affidavit fails as a matter of law to set forth sufficient competent evidence to support the magistrates finding of probable cause. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564, discussing Illinois v. Gates, supra, 462 U.S. at p. 236.)

A defendant who moves to traverse a search warrant bears the burden of proving to the trial court by a preponderance of the evidence that the affidavit in support of the warrant included a false statement of fact or an omission of fact made knowingly and intentionally, or with reckless disregard for the truth. (Hobbs, supra, 7 Cal.4th at p. 974, discussing Franks v. Delaware (1978) 438 U.S. 154, 155-156 (Franks).) The defendant must also demonstrate to the trial court that the false statement of fact or omission of fact was necessary to the finding of probable cause. (Hobbs, at p. 974.)

A trial courts factual findings at a defendants Franks hearing on a claim of police misconduct must be affirmed on appeal when they are supported by substantial evidence. (People v. Costello (1988) 204 Cal.App.3d 431, 441.)

Under Evidence Code sections 1041 and 1042, all or part of an affidavit in support of a search warrant may be sealed when necessary to protect the identity of a confidential informant. (Hobbs, supra, 7 Cal.4th at pp. 963, 970-971.) When an affidavit in support of a search warrant has been sealed, a defendants motion to traverse and/or quash a search warrant runs up against the impediment posed by the sealed affidavit. In this situation, a defendant may file a Hobbs motion to unseal the affidavit in accord with the following procedures.

On a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing [to determine] whether sufficient grounds exist for maintaining the confidentiality of the informants 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 informants identity. [] . . . []

If the affidavit is found to have been properly sealed, . . . 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. . . . 

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.  [Citations.]  Such a procedure will assure the defendant of a judicial check on possible police mis-representations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants.  [Citations.]

If, on the other hand, the court determines there is a reasonable probability that defendant would prevail on the motion to traverse i.e., a reasonable probability, based on the courts in camera examination of all the relevant materials, that the affidavit includes a false statement or statements made knowingly and intentionally, or with reckless disregard for the truth, which is material to the finding of probable cause (Franks, supra, 438 U.S. at pp. 155-156 . . . ) ‑‑ the district attorney must be afforded the option of consenting to disclosure of the sealed materials, in which case the motion to traverse can then proceed to decision with the benefit of this additional evidence, and a further evidentiary hearing if necessary [citations], or alternatively, suffer the entry of an adverse order on the motion to traverse. ([Evid. Code,] 1042, subd. (a).)

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 the warrant. (Illinois v. Gates [, supra,] 462 U.S. [at p.] 238 . . . ; see also People v. Camarella (1991) 54 Cal.3d 592, 600-601 . . . .) In reviewing the magistrates determination to issue the warrant, it is settled that the warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrates finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.  [Citations.] [Citation.] 

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 the 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.  [Citations.]  If, on the other hand, the court determines, based on its review of all relevant materials and any testimony taken at the in camera hearing, that there is a reasonable probability the defendant would prevail on his motion to quash the warrant i.e., a reasonable probability that the search warrant affidavit, including the sealed portions thereof, fails to establish sufficient probable cause for issuance of the warrant then the district attorney must be afforded the opportunity to consent to disclose the sealed materials to the defense, after which the motion to quash can proceed to decision, or alternatively, suffer the entry of an order adverse to the People on the motion to quash the warrant. ([Evid. Code,] 1042, subd. (a).) (Hobbs, supra, 7 Cal.4th at pp. 972-975.)

Somerville contends it seems highly unlikely that no portion of Detective Mrakichs sealed affidavit could be disclosed to defense counsel without endangering the safety or usefulness of the informant. He has requested our court to review the sealed affidavit independently and to issue a determination whether the trial court should have disclosed all or some of the affidavit. Whether disclosed or not, Somerville requests that we also undertake a further independent review of the sealed affidavit and the transcript of the in camera hearing, to determine whether there was probable cause for the search warrant and/or any indicia of misrepresentation.

We have reviewed Detective Mrakichs sealed affidavit and conclude that the trial court correctly determined: (1) the sealed affidavit supports the magistrates finding of probable cause for the search warrant; (2) the sealed affidavit does not contain any patent material misrepresentations or omissions; (3) the sealed affidavit does not contain any information tending to suggest that the confidential informant could have provided any evidence which might have exonerated Somerville; and (4) disclosure of the sealed affidavit would identify the informant. (People v. Lawley (2002) 27 Cal.4th 102, 159.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

RUBIN, Acting P.J.

ONEILL, J.*

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* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.