Filed 10/18/17 P. v. Elder CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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Following the trial court’s denial of his motions to traverse and quash a search warrant, defendant Billy Joe Elder pleaded guilty to possession of marijuana for purposes of sale (Health & Saf. Code, § 11359) and admitted being previously convicted of a serious or violent felony (Pen. Code, §§ 1170.12, subds. (a) - (d) & 667, subds. (b) - (i)). After granting defendant’s motion to strike his prior strike conviction, the trial court sentenced defendant to serve three years in state prison.

On appeal, defendant contends the trial court erred in allowing a portion of the search warrant affidavit to remain sealed and in denying his motions to traverse and quash the search warrant. He asks us to conduct an independent review of the in camera proceedings of the affidavit. Defendant also challenges the constitutionality of the procedures under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). We affirm the judgment.

BACKGROUND

In November 2014, a magistrate signed a warrant authorizing the search of a residence, its surrounding areas and out buildings, and any vehicles and other property on the premises “in the care custody or control of the occupants of the . . . described premises.” The warrant described defendant as an adult male “known to reside at the . . . described premises.” Law enforcement officers were directed to search for drugs, as well as indicia of drug manufacturing and sales, firearms, and indicia of any association with or membership in a motorcycle gang.

Before pleading guilty, defendant brought motions, following the procedures set forth in Hobbs, supra, 7 Cal.4th 948, to have the trial court conduct an in camera review of the sealed material to determine whether the sealing was proper and to traverse and quash the warrant. The trial court did so and (1) found the affidavit was properly sealed, (2) denied the motion to traverse the warrant because the public and sealed portions of the affidavit do not support any charges of material misrepresentation, and (3) denied the motion to quash the warrant based on the court’s review of all the relevant materials, that the magistrate had a substantial basis for concluding probable cause existed for the issuance of the search warrant in question.

DISCUSSION

Defendant requests this court to conduct an independent review of the in camera proceedings and sealed affidavit to determine if the trial court erred in denying defendant’s motion to unseal the affidavit, traverse and quash the warrant, and suppress the evidence found in defendant’s residence.

Under Hobbs, supra, 7 Cal.4th 948, “[o]n a properly noticed motion by the defense seeking to quash or traverse [a] search warrant” where any portion or all of the search warrant affidavit has been sealed, “the lower court should conduct an in camera hearing . . . . It must first be determined 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.” (Hobbs, supra, 7 Cal.4th at p. 972, fn. omitted.)

“If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant’s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit . . . . 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.’ [Citation.]” (Hobbs, supra, 7 Cal.4th at p. 974.)

“If the trial court determines that the materials . . . before it do not support defendant’s charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. [Citations.]” (Hobbs, supra, 7 Cal.4th at p. 974.)

“f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], 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. [Citations.] In reviewing the magistrate’s 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 magistrate’s 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.]” ([i]Hobbs, supra, 7 Cal.4th at p. 975.)

“If the court determines, based on its review of all the relevant materials, that the affidavit . . . furnished probable cause for issuance of the warrant . . . [citation], the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.]” (Hobbs, supra, 7 Cal.4th at p. 975.) “In 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.]” (Ibid.) On appeal, we review for abuse of discretion. (See Hobbs, at p. 976.)

Defendant contends the in camera procedure violated several of his constitutional rights, including his Fourteenth and Sixth Amendment Rights. Trial counsel did not object, on constitutional grounds, to the in camera procedure prescribed by Hobbs, supra, 7 Cal.4th 948. On the contrary, he requested that the court conduct an in camera review and probable cause determination in conformance with Hobbs.

“[C]onstitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal.” (People v. Rudd (1998) 63 Cal.App.4th 620, 628.) Even due process claims may be forfeited by the failure to assert them in a timely manner in the trial court. (See People v. Toro (1989) 47 Cal.3d 966, 975-976, overruled on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)

Furthermore, the doctrine of invited error precludes a party from complaining on appeal of errors induced by his or her own conduct. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 389, p. 447; see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.)

Because defendant not only did not interpose a proper objection but actually requested a Hobbs hearing, his constitutional attack upon the procedure is both forfeited and barred by the doctrine of invited error. In any event, defendant’s argument is foreclosed by Hobbs, supra, 7 Cal.4th at pages 971 to 975 that expressly authorized the procedure followed by the trial court. Both this court and the trial court are bound by decisions of the state Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) This court has no power to overrule Hobbs. (Auto Equity Sales, Inc., at p. 455.)

Furthermore, having reviewed the transcript of the in camera proceedings and the sealed and unsealed portions of the search warrant affidavit, we conclude there was no abuse of discretion. The trial court correctly determined the confidential portion of the affidavit was properly sealed. The trial court also correctly determined there was nothing to suggest any material misrepresentations or omissions were made by the affiant in applying for the search warrant, and the affidavit set forth sufficiently reliable and competent evidence to support the magistrate’s finding of probable cause to issue the warrant. Accordingly, the trial court properly denied defendant’s motion.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

MURRAY, J.