P. v. Garcia

Filed 10/18/06 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner and Lee Phillip Felice, Judges.^“

Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Juan Manuel Garcia, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two) and an arming enhancement (Pen. Code, § 12022, subd. (a)(1)).^[1] Three other counts and two prior prison term enhancements were dismissed. The court sentenced Garcia to prison for the low term of 16 months years for possession of methamphetamine and to a consecutive one-year term for the arming enhancement. Appellant’s total prison term is two years four months. The court granted applicable custody credits and imposed a restitution fine.

Respondent initially seeks to dismiss the appeal for appellant’s failure to obtain a certificate of probable cause. On appeal, appellant contends the trial court erred in denying his motion to quash the search warrant and to suppress evidence retrieved as a result of the search. Appellant has requested this court to conduct independent review of a sealed portion of the search warrant and the reporter’s transcript of an in camera hearing conducted by the trial court. We will deny respondent’s motion to dismiss the appeal and affirm the judgment.

FACTS

Arrest

Bakersfield police officers were conducting surveillance of Dawn Snapp on February 23, 2005, for sale of methamphetamine. Snapp met appellant in a motel room. After a short time, Garcia left the room and drove away. Officers followed Garcia to a shopping center parking lot. A female approached appellant’s car and entered it. After a few minutes she exited the car and drove away. Suspecting Garcia was selling narcotics, the officers conducted a traffic stop. Garcia provided a Mexican identification card with another person’s name and birthdate. A computer check revealed no diver’s license issued under the name on the card. The officers detained Garcia.

The officers obtained a search warrant and contacted Snapp at her motel room. The officers executed the warrant and found methamphetamine, glass smoking pipes, receipts in the name of Manuel Garcia, and nearly $1,500 in United States currency. Officers found a .22-caliber firearm with the serial number scratched off. Snapp said the methamphetamine was for her personal use and that she rented the room to spend time with appellant. Appellant said he purchased the gun earlier for $30 and then refused to answer other questions.

Motion to Quash Search Warrant

The original search warrant affidavit was redacted. The appellant brought a motion to quash the search warrant. The appellant motioned the trial court to review the unredacted warrant for inconsistencies and to establish if the information provided by a Confidential and Reliable Informant (CRI) established probable cause. The appellant also filed a motion to quash the search warrant in which the prayer sought to “suppress the items set forth and described in the Return to said search warrant . . . .”

Appellant also filed a motion to unseal the search warrant and for independent review of the sealed portion of the warrant pursuant to People v. Hobbs (1994) 7 Cal.4th 948. Appellant sought the trial court’s review of the complete warrant affidavit to see if there were inconsistencies in that portion of the warrant. The appellant filed a notice of joinder with codefendant Snapp’s motion to suppress evidence pursuant to section 1538.5.

On May 3, 2005, the trial court conducted the hearing on the various motions brought by appellant and Snapp. At the beginning of the hearing, appellant’s counsel expressly informed the court that he was dropping his joinder with Snapp’s section 1538.5 motion and would “proceed only on the Motion to Quash and the Motion to Unseal the Search Warrant.”

The trial court granted the defendants’ request for an in camera hearing to review the sealed portion of the search warrant affidavit, designated as Attachment A. Officer Brian West, who prepared the search warrant affidavit, was also examined. The court determined from West that there were some statements in Attachment A which were already in the redacted search warrant affidavit. The court ordered these statements unsealed. Relevant portions of the search warrant are set forth below. Unsealed portions from Attachment A are italicized.

“Within the past 10 days, I met with a confidential reliable informant, who shall be referred to as CRI for the purposes of this affidavit, who told me he/she was capable of purchasing methamphetamine from a subject he/she described as Dawn Snapp WFA 30’s brown hair, residing at 6321 Knudsen Drive space #23, and driving a white Chrysler vehicle California license 2EOZ274

“I escorted the CRI to Knudsen Drive and he/she pointed out the mobile home at 6321 Knudsen Drive #23 as the residence he/she knows Dawn Snapp to reside at. The 1987 Chrysler Ca. Lic.2EOZ274 was parked at this location. The CRI stated this is the vehicle he/she knows Dawn Snapp to drive. Within the same past 10 days the CRI said he/she has seen Dawn Snapp in possession of methamphetamine and has seen Dawn Snapp sell methamphetamine. The CRI further stated he/she knows Dawn Snapp obtains her methamphetamine from Manuel HMA 35-40 years.”

The search warrant affidavit further states that West conducted surveillance on Dawn Snapp and saw her drive the 1987 Chrysler automobile with the above listed license plate. West observed a Hispanic male adult 35 to 40 years old, who is 5’9”, 170 pounds, and wearing short black hair. The officer observed Snapp and the male obtain a room at the Comfort Inn on Wible Road.

West conducted a records check on Snapp and her automobile. West stated that from his past training and experience, he has learned that drug dealers commonly rent motel rooms to hide their identity and to sell narcotics. According to West, the CRI was not paid a sum of money for assisting the investigation but is receiving consideration in a pending criminal matter.

West stated he knows the CRI to be knowledgeable about methamphetamine and dangerous drugs, their appearance, methods of packaging, and use. In the past, the CRI has provided information leading to the arrest of one person for possession of methamphetamine for sale and the seizure of a controlled substance. West explained that he sought to keep the identity of the CRI confidential to protect that person and to preserve the future effectiveness of the CRI.

The trial court ultimately denied both defendants’ motions to quash the warrant. The court denied Snapp’s suppression motion and a separate motion to traverse the search warrant, to which appellant was not a party.

MOTION TO DISMISS

Appellant failed to obtain a certificate of probable cause. Appellant joined, but withdrew from his codefendant’s suppression motion filed pursuant to section 1538.5. Respondent filed a motion to dismiss the appeal because there is no certificate of probable cause and no ruling from the trial court on a suppression motion filed pursuant to section 1538.5. Respondent contends appellant’s appeal is procedurally barred pursuant to section 1237.5. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

In response to respondent’s motion, appellant argues that his motion to quash the search warrant sought to suppress the items set forth and described in the return and that he has therefore complied with subdivision (m) of section 1538.5 which states in relevant part that: “Review on appeal may be obtained by the defendant 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 evidence.”

When a defendant seeks discovery of information about a confidential informant, but fails to seek return of property or the suppression of evidence, the defendant must have a certificate of probable cause. Sections 1237.5 and 1538.5, subdivision (m) do not create, for instance, a right of appellant review for a discovery matter. (People v. Hunter (2002) 100 Cal.App.4th 37, 40-43.)

Although appellant joined and withdrew from his codefendant’s suppression motion brought pursuant to section 1538.5, appellant did seek to suppress items of evidence seized pursuant to the search warrant. The trial court ruled on appellant’s motion to quash and, in doing so, denied his request to suppress evidence. To hold that appellant’s request to suppress evidence is different from a request to suppress evidence pursuant to section 1538.5, subdivision (m), would be placing form over substance. Under the facts of this case, appellant’s motion to quash and a motion to suppress under section 1538.5, subdivision (m) are equivalent.

We find that where a motion to quash includes a request to suppress evidence, that it falls within the ambit of section 1538.5, subdivision (m), and the trial court’s ruling is not procedurally barred from appellate review under section 1237.5 for the appellant’s failure to obtain a certificate of probable cause. (People v. Hobbs, supra, 7 Cal.4th 948, 976; also see People v. Navarro (2006) 138 Cal.App.4th 146, 156, fn. 4 [citing People v. Lillienthal (1978) 22 Cal.3d 891, 896-897.) The respondent’s motion to dismiss the appeal is denied.

HOBBS REVIEW

Appellant seeks independent review of Attachment A pursuant to People v. Hobbs, supra, 7 Cal.4th 948. Appellant requests this court to review Attachment A to see whether the CRI was a material witness on his guilt or innocence, if there were false statements in the affidavit which were necessary for the trial court’s finding of probable cause in issuing the warrant, and if there was a fair probability contraband or evidence would be found in the place described in the search warrant.

When the trial court conducts Hobbs review, it should first conduct an in camera hearing to determine if sufficient grounds exist for maintaining the informant’s confidential identity. The court must next decide whether any portion, or all, of the affidavit should remain sealed. The defendant and counsel may submit questions to be posed by the court. Because the defendant will not know the contents in the sealed portion of the affidavit, the court must insure the affidavit establishes probable cause and that necessary evidence and witnesses are available. The court may question witnesses. The information will invariably include information concerning the informant such as the informant’s reliability. (People v. Hobbs, supra, 7 Cal.4th at pp. 972-973.)

If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should 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, including testimony at the in camera hearing. In order to prevail on such a challenge, the defendant generally must demonstrate the affidavit included a false statement made knowingly and intentionally, or with reckless disregard for the truth, and the allegedly false statement is necessary to the finding of probable cause. (People v. Hobbs, supra, 7 Cal.4th at pp. 974 [citing Franks v. Delaware (1978) 438 U.S. 154, 155-156].) If a trial court determines that the materials and testimony 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. (Ibid.)

Appellant’s related motion to unseal the search warrant did seek information in Attachment A which would show inconsistencies or false statements in the warrant. The trial court reviewed Attachment A and examined Officer West during the in camera hearing. The court did not call the CRI as a witness. The trial court found no inconsistencies or false statements in Attachment A and further found that the excised information would reveal the identity of the informant, except for information left in the redacted search warrant affidavit.

The record reflects that what is missing from the search warrant affidavit is information which would reveal the identity of the CRI. The court and the magistrate found that disclosing this information would effectively reveal the informant’s identity and that the information was, therefore, properly sealed. Our review of the record affords no basis for questioning the trial court’s findings. We are satisfied that the trial court acted within its sound discretion in conducting its in camera review of the sealed information, affirming the magistrate’s determination that sealing Attachment A was necessary to protect the CRI’s identity (except for information already in the redacted search warrant), and sealing the excised portion of the transcript.^[2] (People v. Hobbs, supra, 7 Cal.4th at pp. 976.)

Appellant challenges the validity of the warrant.^[3] The trial court has to measure the validity of the warrant under the totality of the circumstances. The issuing magistrate must be convinced that the information in the warrant and testimony, if any, is sufficient if there is a fair probability contraband or evidence of a crime will be found in the place to be searched pursuant to the warrant. In reviewing the magistrate’s determination to issue the warrant, the warrant can only be upset if the affidavit fails as a matter of law. 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 by oral testimony. (People v. Hobbs, supra, 7 Cal.4th at pp. 975.)

Nothing in the sealed or public portions of the record suggests that any misrepresentations, material or otherwise, were made by Officer West in applying for the search warrant. There was no information suggesting the CRI was unreliable or provided hearsay information to investigating officers as appellant posits in his reply brief. Nor was there any factual or legal basis for the trial court to question the sufficiency of the search warrant. (People v. Hobbs, supra, 7 Cal.4th at pp. 977.) The CRI saw Snapp sell an illegal narcotic within 10 days of the officer’s affidavit and knew Snapp obtained her supply of drugs with someone who had appellant’s name and who fit his general description. Police surveillance verified Snapp’s identity. The officers saw Snapp and appellant obtain a motel room together and stay in the room prior to executing the search warrant. Appellant never challenged the validity of the officers’ traffic stop of him after he left the motel.

Under the facts adduced below, including the search warrant affidavit, the in camera hearing, and Attachment A, we do not find that the warrant fails as a matter of law. There was no evidence before the trial court, including Attachment A and the testimony of Officer West during the in camera hearing, to support appellant’s theory that the search warrant was based on materially false information, hearsay, or information from an untrustworthy source.

DISPOSITION

The judgment is affirmed. The transcript of the in camera hearing of May 3, 2005, and the excised portion of the search warrant affidavit, Attachment A, are hereby ordered resealed and may not be viewed except upon the order of a court of competent jurisdiction.

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^* Before Harris, A.P.J., Cornell, J., and Kane, J.

^“ Judge Gildner ruled on appellant’s motion to quash. Judge Felice presided over appellant’s change of plea and sentenced him.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] The trial court sealed Attachment A and had it returned to Officer West. This procedure was wrong. In Hobbs, our Supreme Court expressly stated that the trial court in all instances should retain the record of the sealed transcript of the in camera proceedings (which the trial court did do here), and, “any other sealed or excised materials . . . along with public portions of the search warrant application for possible appellate review.” (People v. Hobbs, supra, 7 Cal.4th at p. 975.) Because of the procedures employed by the trial court, the Kern County Clerk’s Office was unable to initially comply with our augmentation order of February 6, 2006, that Attachment A be sent to this court. Later, we were able to obtain and review Attachment A.

^[3] Appellant raises challenges to the sufficiency of the warrant in his reply brief that he did not directly raise in his opening brief. These include his assertion of the possibility that the informant was unreliable and/or the search warrant was based on hearsay information from the informant. Although we find no merit to these challenges, we note that we could have rejected these issues as untimely. It is improper appellate procedure to raise issues for the first time in a reply brief. We are entitled to decline consideration of such matters at such a late stage of the appellate process. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1.) To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief from the respondent. (Campos v. Anderson (1997) 57 Cal.App.4th 805, 794, fn.3.)