Filed 6/9/17 P. v. Chaidez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

LIDELFONSO CHAIDEZ,

Defendant and Appellant. B267623

(Los Angeles County
Super. Ct. No. BA402561)






APPEAL from a judgment of the Superior Court of Los Angeles County, C. H. Rehm, Jr., Judge. Affirmed.
Sherman & Sherman and Victor Sherman for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Lidelfonso Chaidez (also known as Lidelfonso Avendano) appeals from a judgment of conviction following a plea of no contest to charges of conspiracy to commit possession of cocaine for sale (count 1), and possession of over $100,000 in monetary proceeds from the sale of narcotics (count 2). The appeal, filed pursuant to Penal Code section 1237.5, challenges the constitutionality of the Hobbs procedure for sealing affidavits of probable cause for search warrants, as well as the denials of various pretrial motions. We find no basis for reversal, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND
In September 2012, Costa Mesa Police Officer Mario Garcia applied for a warrant to search three residences. In the public portion of his application, Garcia stated he was an experienced narcotics trafficking investigator and had reason to believe the residences were being used for “illegal drug trafficking and/or money laundering activities . . . .” In a confidential affidavit, Garcia provided the probable cause information and requested that the affidavit be sealed in order to protect any confidential informants whose lives could be endangered if their identities were revealed.
The magistrate (Judge Karen Ackerson-Brazille) sealed the confidential affidavit of probable cause, and issued the search warrant. In the sealing order, the magistrate found that Garcia had demonstrated an “overriding interest that overcomes the right of public access to the record; the overriding interest supports sealing the record; a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest.”
Pursuant to the warrant, police executed a search at the home of appellant on Courtland Avenue. Officers recovered two bags of currency (one containing $69,000 and the other containing $850,000), four firearms, and a money counting machine. No drugs were found in his home.
Twelve kilograms of cocaine were found in the attic of the Century Boulevard residence of appellant’s daughter, son-in-law (codefendant Jorge Martinez), and granddaughter.
At the Paramount Boulevard home of codefendant Javier Uriarte (also known as Javier Navidad), officers recovered four kilograms of cocaine, cash ($355,000 in a paper bag, $15,900 under a mattress, $2,000 inside a stuffed animal), pay/owe ledgers, suspected methamphetamine, a weighing scale, a money counting machine, and drug packaging materials.
Before the preliminary hearing, appellant moved to quash and traverse the search warrant, unseal the confidential affidavit of probable cause, and compel disclosure of any confidential informants. In May of 2012, the court (Judge Edmund W. Clark, Department 37) unsealed a small portion of the confidential affidavit and denied the balance of the motion.
Two months later, a preliminary hearing was held for appellant and the codefendants. The lead investigator, Jack Poland, testified as to the surveillance operation that led him to conclude appellant was in charge of a drug trafficking operation in which his codefendants were active participants. In response to a question regarding the information that triggered the police investigation, Poland asserted the official information and







confidential informer privileges. (Evid. Code, §§ 1040, 1041.) The magistrate (Judge Michael Pastor, Department 51) examined Poland in chambers on the grounds for asserting the privileges. Upon resuming the proceeding, defense attorneys not privy to Poland’s in camera testimony argued the privileges did not apply. Appellant’s attorney, Victor Sherman, argued that codefendants had implicated themselves but not his client, and if police had information regarding any third parties who may have an ownership interest in the narcotics found in the homes of the codefendants, appellant was entitled to that potentially exculpatory information.
The court stated it was unaware of any information that would exonerate appellant or his codefendants. Upon balancing the necessity of preserving confidentiality against the right to disclosure of information that might lead to an effective defense, the court upheld the privileges asserted by Poland. The court found the necessity for preserving the confidentiality of the information clearly outweighed the need for disclosure of the information in the interest of justice, and its disclosure would be contrary to the public interest under Evidence Code section 1042.
Appellant and his codefendants were held to answer. Following entry of his not guilty plea, appellant filed numerous motions, which we next discuss.
Discovery. Appellant sought the names and addresses of all informants and material witnesses whose testimony would be critical to his defense. He also requested impeachment information under Brady v. Maryland (1963) 373 U.S. 83.
Quash and Traverse Search Warrant. Appellant moved to quash and traverse the search warrant on the ground that the public portion of the affidavit contained no facts and therefore failed to support a finding of probable cause. Appellant also requested the court to conduct an in camera hearing to determine whether it was feasible to unseal the confidential information without revealing the names of confidential informants, or whether the entire affidavit should be unsealed because, due to changed circumstances, the grounds for sealing the affidavit were no longer valid.
Material Witnesses. Appellant also sought disclosure of all confidential informants who qualified as material witnesses. (Evid. Code, § 1042, subd. (d).) He requested that the affidavit of probable cause be unsealed to reveal the names of material witnesses.
Discriminatory Enforcement. Appellant moved for dismissal based on discriminatory enforcement. He argued that courts routinely seal affidavits of probable cause for search warrants without fully complying with the protections and procedures enumerated in Hobbs. Based on a declaration by his attorney, appellant argued it was “common practice for Los Angeles County judges to authorize requests to seal the probable cause affidavit without a thorough examination, [and that] Judge Ackerson-Brazille likely simply read the police officer’s probable cause affidavit and signed it without following the Hobbs procedures.”
Discovery. Appellant subpoenaed documents from the district attorney relevant to his theory that affidavits of probable cause were routinely sealed in large-scale narcotics cases against Hispanic defendants. The district attorney moved to quash the subpoena. Appellant then limited his discovery request to cases filed within a two-year period, in which affidavits of probable cause were ordered sealed under Hobbs.
In Camera Hearing. Appellant asked the court to personally interview the informant at a new in camera hearing. The district attorney argued appellant was not entitled to a new evidentiary hearing, and, in any event, a new hearing under Hobbs would simply confirm there was “a substantial basis for granting the search warrant and that adequate probable cause existed for its issuance, also that there are no false statements or material omissions.”
On May 5, 2015, the superior court (Judge C. H. Rehm, Jr., Department 130) granted appellant’s request for a new in camera hearing. The court did not specifically require the presence of the informant. Instead, it required testimony from any available law enforcement witness who could “discuss the change in circumstances, and whether or not there was information that was not available early on that is now available today.” Appellant, the only defendant left in the case, was excluded from the in camera hearing at which Poland testified on the issue of changed circumstances. At the conclusion of that hearing, the trial court ruled on all outstanding motions.
Trial Court Rulings. The court denied appellant’s motion to quash and traverse the search warrant. It found the warrant had been properly issued, and nothing in the public or confidential information, including the information presented in Departments 37 and 51, indicated the existence of a deliberate falsehood or statement made in reckless disregard for the truth.
The motion to unseal all or portions of the affidavit of probable cause was denied. The court found the requirements for the privilege asserted by Poland under Evidence Code section 1042 continued to be met: “After having had the opportunity to consider those previous rulings and conduct its own in camera proceedings, the court finds that all of the risks and dangers in disclosing the portions previously sealed continue to exist at this time. Nothing in those sealed portions would exonerate this or any other defendant. Nothing appeared to be Brady material. Nothing demonstrates bad faith by the People in withholding the information. Nothing demonstrates that this information might lead to effective defense evidence that would make it reasonably probable that the defense would prevail on its motions to suppress, quash, or traverse the warrant. [¶] The necessity for preserving the confidentiality of this information substantially outweighs the necessity of disclosing that information in the interest of justice. Providing this information is at this time against public interest.”
The court granted the prosecution’s motion to quash the discovery subpoena, and denied the corresponding defense motion to compel discovery of other cases in which sealing orders had been issued. The court found no evidentiary support for the defense theory of a “selective or otherwise improper utilization of the Hobbs sealing procedures in this or any other case.”
No Contest Plea. The court approved a negotiated settlement agreement pursuant to which appellant entered a plea of no contest. He received a 13-year sentence, with six years to be served in county jail, and the remainder to be suspended pending completion of seven years of mandatory supervision. The court issued a certificate of probable cause (§ 1237.5, subd. (a)), and this timely appeal followed.

DISCUSSION
There is a limited right to appeal from a judgment of conviction based on a no contest plea. Where the appeal is based on a certificate of probable cause, the only cognizable issues are those that show a “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (§ 1237.5, subd. (a).) Beyond that, a defendant has a right to challenge the validity of a search or seizure, “provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.” (§ 1538.5, subd. (m).) As a corollary, where the claim is directed to the legality of the search, a defendant also may challenge the sealing
of an affidavit of probable cause. (Hobbs, supra, 7 Cal.4th at p. 956.)
I
Appellant challenges the constitutionality of the Hobbs procedure for sealing affidavits of probable cause for search warrants. He argues that when an affidavit of probable cause is sealed, the accused is deprived of many constitutional rights, including the opportunity to be heard, the right to present a complete defense, the assistance of counsel, and a public trial.
Because we are bound by Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455–456), we have no authority to overrule Hobbs. In any event, we do not agree with the contention that Hobbs is unconstitutional. On this point, we find the discussion in People v. Galland (2008) 45 Cal.4th 354 to be instructive. In that case, our Supreme Court reasoned as follows:
“Evidence Code section 1041 codifies the common law privilege against disclosure of the identity of a confidential informant. Evidence Code section 1042, subdivision (b) states, in particular, that disclosure of an informant’s identity is not required to establish the legality of a search pursuant to a warrant. A corollary rule provides ‘that “if disclosure of the contents of [the informant’s] statement would tend to disclose the identity of the informer, the communication itself should come within the privilege.”’ (Hobbs, supra, 7 Cal.4th at pp. 961–962.) ‘These codified privileges and decisional rules together comprise an exception to the statutory requirement that the contents of a search warrant, including any supporting affidavits setting forth the facts establishing probable cause for the search, become a public record once the warrant is executed.’ (Id. at p. 962; cf. Pen. Code, § 1534, subd. (a).) Instead, a court may order any identifying details to be redacted or, as in this case, a court may adopt ‘the procedure of sealing portions of a search warrant affidavit that relate facts or information which, if disclosed in the public portion of the affidavit, will reveal or tend to reveal a confidential informant’s identity.’ (Hobbs, supra, at p. 963.)
“When a defendant seeks to quash or traverse a warrant where a portion of the supporting affidavit has been sealed, the relevant materials are to be made available for in camera review by the trial court. (Hobbs, supra, 7 Cal.4th at p. 963; see Evid. Code, § 915, subd. (b).) The court should determine first whether there are sufficient grounds for maintaining the confidentiality of the informant’s identity. If so, the court should then determine whether the sealing of the affidavit (or any portion thereof) ‘is necessary to avoid revealing the informant’s identity.’ (Hobbs, supra, 7 Cal.4th at p. 972.) Once the affidavit is found to have been properly sealed, 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’ (if the defendant has moved to quash the warrant) or ‘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’ (if the defendant has moved to traverse the warrant). (Id. at pp. 974, 975.) The prosecutor may be present at the in camera hearing; the defendant and defense counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. However, 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.)
“These procedures were ‘designed to strike a fair balance between the People’s privilege to refuse disclosure of a confidential informant’s identity and the defendant’s limited discovery rights in connection with any challenge to the search warrant’s validity.’ (Hobbs, supra, 7 Cal.4th at p. 964.) As we have noted, ‘“there is a fundamental difference between a trial to adjudicate guilt or innocence and a pretrial hearing to suppress evidence. The due process requirements for a hearing may be less elaborate and demanding than those at the trial proper.”’ (Id. at p. 968.) Thus, ‘“[a] defendant’s interest in availing himself of the exclusionary rule may, in exceptional circumstances, be subordinated to safety precautions necessary to encourage citizens to participate in law enforcement.”’ (Ibid.) The ‘strong and legitimate interest in protecting the informant’s identity’ (People v. Luttenberger (1990) 50 Cal.3d 1, 19) derives from the need to protect the safety of the informant and the informant’s family, the need to preserve the informant’s usefulness in current and future investigations, and the need to assure others who are contemplating cooperation with law enforcement of their safety as well. (McCray v. Illinois (1967) 386 U.S. 300, 308–309.)” (People v. Galland, supra, 45 Cal.4th at pp. 363–365.)

II
We apply the abuse of discretion standard in reviewing the denial of a motion to quash and traverse a search warrant. (See Hobbs, supra, 7 Cal.4th at p. 975.)
Based on our examination of the sealed affidavit of probable cause, we conclude the affiant showed to a fair degree of probability that contraband or evidence of a crime would be found at the locations to be searched. Accordingly, the motion to quash the search warrant was properly denied. (See Hobbs, supra, 7 Cal.4th at p. 975.) Because we find no indication that the affidavit of probable cause contained material misrepresentations or omissions, the motion to traverse the search warrant also was properly denied. (See ibid.)
Appellant argues the informant should have been required to testify on the issue of changed circumstances at the May 5, 2015 in camera hearing. He cites People v. Seibel (1990) 219 Cal.App.3d 1279, 1297–1298 for the proposition that a trial court has discretion to call and question an informant. We find no abuse of discretion.
As the court stated in Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277–1278, testimony by a confidential informant “is not required at the in camera hearing. (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1078–1079; accord, People v. Fried [(2010)] 214 Cal.App.3d 1309.) Instead, ‘the Legislature clearly anticipated there would be situations where the informant’s identity was not revealed to the judge but where others would supply information perhaps about his relationship to the defendant or to the criminal transaction or to the premises involved which, if known to the defendant, might only tend to suggest the informant’s identity.” (Alderrou, at p. 1079, fn. omitted.) Thus, in Fried, only a detective was present and testified about the confidential informant’s relationship to the case. (Fried, at pp. 1312–1313.) Fried found that this procedure was proper and that the confidential informant need not be present at the in camera hearing.”

III
Appellant challenges the denial of his motion to unseal all of part of the affidavit of probable case. As discussed, the issue is cognizable to the extent the claim is directed to the legality of the search. (Hobbs, supra, 7 Cal.4th at p. 956.) We find no error.
Citing Roviaro v. United States (1957) 353 U.S. 53, 60–61, appellant contends the privilege under Evidence Code section 1042 must yield when the disclosure of the identity of the informer or the contents of his or her communication would be relevant and helpful to the defense, or essential to a fair determination of the case. Roviaro is distinguishable. Because that case involved an appeal from a judgment of conviction following a bench trial, the Supreme Court did not consider the application of its holding to a defendant whose judgment of conviction is based on a plea of guilty or no contest.
It is well established under California law that a defendant may not admit that he possessed the contraband by pleading no contest and then appeal from “the judgment on the ground that some witness he was not permitted to discover might possibly have testified otherwise. [Citation.] The two positions are inconsistent.” (People v. Castro (1974) 42 Cal.App.3d 960, 963.) Such “challenge would relate to defendant’s guilt, rather than the legality of the search pursuant to warrant, and would have been waived by [his or] her plea of no contest. [Citations.]” (Hobbs, supra, 7 Cal.4th at pp. 955–956, citing Castro, at p. 963 and People v. Duval (1990) 221 Cal.App.3d 1105, 1114.)

IV
In order to establish a colorable claim of selective enforcement, a defendant must produce “some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law. [Citations.]” (United States v. Armstrong (1996) 517 U.S. 456, 469.) The evidence in this case falls short of this standard.
The trial court found the attorney declaration insufficient to establish a prima facie claim of selective enforcement against Latino defendants. Because there was no evidence of disparate treatment, the claim of discriminatory prosecution against Latino defendants was found to be speculative. We agree with the trial court’s ruling.
Appellant argues that discovery on his claim of discriminatory enforcement may be obtained based on information and belief. The cases he cites, Griffin v. Municipal Court (1977) 20 Cal.3d 300 and Murgia v. Municipal Court (1975) 15 Cal.3d 286, have been superseded. As explained in People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, the former “‘plausible justification’ standard held sway in California until 1990. Penal Code section 1054, subdivision (e) took effect in 1990. This statute prohibits any discovery in a criminal case which is not expressly mandated by statute or required by the U.S. Constitution. (Pen. Code, § 1054, subd. (e); see also Pen. Code, § 1054.5, subd. (a).) There are no California statutes which expressly require the prosecution to disclose to the defense information which may support a discriminatory prosecution claim. (See Pen. Code, § 1054.1 [required disclosures to the defense].) Consequently, discovery of information pertinent to a discriminatory prosecution claim is no longer authorized in California unless such disclosure is required by the U.S. Constitution.” (Baez, at p. 1188.)

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




EPSTEIN, P. J.
We concur:



WILLHITE, J.



COLLINS, J.