P. v. Lopez

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 12/13/13  P. v. Lopez CA1/5

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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

 

FIRST APPELLATE
DISTRICT

 

DIVISION FIVE

 

 

 
>

THE PEOPLE,             Plaintiff and Respondent,                         v. ALVARO HUMBERTO LOPEZ,             Defendant and Appellant.

A137165               (>San Mateo> County             Super. >Ct.> No. SC074925)

 

            Defendant
Alvaro Humberto Lopez appeals following his conviction of various offenses,
including narcotics, firearm, and gang
participation charges.  He requests
that we conduct an independent review of the in camera hearing held pursuant to
People v. Hobbs (1994) 7 Cal.4th 948
(Hobbs).  The People agree independent review is
appropriate.  We affirm.

Procedural Background

            In
August 2012, appellant was charged by amended information with possession of
heroin for sale (Health & Saf. Code, § 11351; count one); possession
of a dirk or dagger (former Pen. Code, § 12020, subd. (a); count two);
possession of a firearm by a felon (former Pen. Code, § 12021, subd.
(a)(1); count three); participation in a criminal street gang (Pen. Code, § 186.22,
subd. (a); count four); possession of ammunition by a felon (former Pen. Code,
§ 12316, subd. (b)(1); count five); possession of cocaine (Health &
Saf. Code, § 11350, subd. (a); count six); and misdemeanor possession of
narcotics paraphernalia (Health & Saf. Code, § 11364; count
seven).  The information also included
street gang, firearm, and prior conviction allegations.

            The
trial court dismissed count two, a jury found appellant guilty on the remaining
counts and found true the enhancement allegations attached to counts one and
three, and the trial court found true the allegations regarding priors.  The court sentenced appellant to a prison
term of 14 years.  This appeal followed.

Factual
Background

            On
May 12, 2011, appellant was
under surveillance by local and federal agents. 
Officers observed him enter a taxi cab, stopped the cab, and searched
appellant pursuant to a search warrant. 
Appellant had a switchblade knife in his pocket and baggies of heroin in
a backpack.

            Officers
obtained a search warrant for
appellant’s apartment.  They found plastic
baggies containing heroin and cocaine, a digital scale and a box of plastic
baggies, and a revolver and ammunition.

Discussion

            Appellant
does not contend there was error at trial or sentencing.  Instead, appellant requests that this court
review the sealed portion of an attachment to the affidavit submitted in
support of a May 3, 2011
search warrant, to determine whether the trial court erred in concluding the
affidavit established probable cause.  He
also requests that this court review whether the trial court erred in denying
his request to unseal the sealed portions of the attachment and his motion to
quash and traverse the warrant.  This
court has reviewed the sealed, unredacted attachment to the affidavit, as well
as the sealed transcript of the in camera hearing held pursuant to >Hobbs, supra, 7 Cal.4th 948.  The
trial court did not err.

            The
May 3, 2011 warrant authorized the search of appellant, a specified residence,
and any vehicle connected to appellant or the specified residence.  Issuance of the warrant was based on an
affidavit of probable cause provided by Police Sergeant Nicholas Chorley.  The most probative information was contained
in an attached “Confidential Attachment #1” (Attachment), which was ordered
sealed.  In March 2012, appellant
requested that the trial court review the sealed Attachment pursuant to >Hobbs, supra, 7 Cal.4th 948;
unseal the sealed portion; and quash and traverse the search warrant because it
was obtained based on a knowingly false statement or in reckless disregard of
the falsity of the statements supporting issuance of the warrant.

            Following
an in camera hearing requested by the People, appellant was provided a redacted
version of the Attachment to Sergeant Chorley’s affidavit.  Among other things, the redacted Attachment
described a March 2010 purchase of heroin from appellant by an “untested
confidential informant.”  The redacted
Attachment reflected there was a meeting with a “Confidential Reliable
Informant” in April 2011, but the details of the meeting were redacted.  The trial court denied appellant’s motions to
disclose the identity of the informants and quash and traverse the search
warrant.

            All
or part of a search warrant affidavit may be sealed if necessary to protect the
identity of an informant who has supplied probable cause for the issuance of a
warrant. (Hobbs, supra, 7 Cal.4th at p. 971.)  Where a defendant moves to traverse or quash a
warrant, the trial court is required to conduct an in camera hearing.  (Id.
at p. 972.)  The court must determine
whether there are sufficient grounds for maintaining the confidentiality of the
informant’s identity, and whether the extent of the sealing is necessary to
protect the informant’s identity.  (>Ibid.)  Absent a waiver from the prosecutor, the
defendant and his counsel may not be present at the hearing.  (Id.
at p. 973.)

            If
the trial court determines all or part of the affidavit was properly sealed, it
must next decide if there is any merit to the defendant’s motion to traverse.  (Hobbs,
supra, 7 Cal.4th at p. 974.)  The court must determine whether there is a
reasonable probability the affidavit includes a false statement made knowingly
and intentionally or with reckless disregard of the truth, and whether the
false statement is necessary to the finding of probable cause.  (Ibid.)
 If not, the court should so inform the
defendant and deny the motion.  (>Ibid.)  If the court determines there is a reasonable
probability the defendant will prevail on the motion, the prosecutor must be
given the option of disclosing the sealed materials, or suffering the entry of
an adverse order on the motion to traverse.  (Id.
at pp. 974-975.)

            If
the defendant has moved to quash the warrant, the trial court must determine
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.”  (>Hobbs, supra, 7 Cal.4th at p. 975.)  If the court determines there was such probable
cause, the court should so inform the defendant and deny the motion.  (Ibid.)
 If the court determines there is a
reasonable probability the defendant will prevail on his motion, the prosecutor
must either disclose the sealed materials to the defense, or suffer the entry
of an adverse order on the motion to quash.
 (Ibid.)

            The
trial court here followed the proper procedure.  Our independent review of the record,
including the sealed portions, confirms the trial court’s determinations.[1]  (People
v. Martinez (2005) 132 Cal.App.4th 233, 241.)  There are sufficient grounds for maintaining
the confidentiality of the April 2011 informant’s identity, and the extent of
the sealing is necessary for that purpose.  Under the totality of the circumstances there
was probable cause to issue the search warrant.  There was no reasonable probability that appellant
would prevail on his motions to quash and traverse the warrant.

Disposition

            The
judgment is affirmed.

 

 

 

                                                                                                                                                           

                                                                                    SIMONS,
J.

 

 

 

We concur.

 

 

 

                                                                       

JONES, P.J.

 

 

 

                                                                       

NEEDHAM, J.