Opinion
A118689
8-29-2008
THE PEOPLE, Plaintiff and Respondent, v. ANTYONE DARNELL COLLINS, Defendant and Appellant.
Not to be Published
The People charged appellant Antyone Darnell Collins with: (1) possessing cocaine base for sale (Health & Saf. Code, § 11351.5); (2) possessing a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); (3) being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) ); and (4) being a felon in possession of ammunition (§ 12316, subd. (b)(1)). Appellant moved to traverse and quash the search warrant and to suppress evidence found in the search. After conducting an in camera hearing, the magistrate denied the motion and sealed the proceedings. Appellant then renewed his motion to traverse and quash the warrant in the trial court. The trial court denied the renewed motion and appellant pleaded no contest to all of the charges and to the enhancements.
All further statutory references are to the Penal Code, unless otherwise specified. The complaint also alleged various sentencing enhancements.
Appellant raises two claims on appeal. First, he challenges the magistrates denial of his motion to traverse and quash the search warrant: he asks this court to review the transcript of the in camera hearing and to conclude that there was no probable cause to support the search. Second, appellant argues his trial counsel rendered ineffective assistance of counsel.
Appellant has also filed a petition for writ of habeas corpus (A120961) raising an ineffective assistance of counsel claim. We deny that petition by separate order filed this date.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 28, 2006, Contra Costa County Sheriffs Deputy William Baker presented an affidavit in support of a search warrant to a magistrate in the Contra Costa County Superior Court. The unsealed portion of the affidavit stated that "[w]ithin the last thirty days," a confidential reliable informant (informant) had notified Baker that a man — known to the informant as "Gotti" — was selling narcotics out of a room at the El Dorado Hotel in Pittsburg. On September 27, 2006, the informant told Baker that Gotti had moved from the El Dorado Hotel to a room at the Executive Suites, a hotel in Antioch. The informant also told Baker that the car Gotti was driving — a Buick with license plate number 2ZKZ700 — was parked in the Executive Suites parking lot.
The affidavit further stated that sheriffs deputies conducted surveillance at the Executive Suites; during the surveillance, a sheriffs deputy saw a black male who fit Gottis description "standing inside the door of room 212." The man got into the Buick with license plate number 2ZKZ700 and left the parking lot. At the end of the affidavit, Baker concluded that "[b]ased on [his] training and experience, along with the information contained in this affidavit, [he] believe[d] that subjects are in possession of controlled substances" at the Executive Suites.
The magistrate reviewed the affidavit and issued a warrant authorizing a search of appellant, his hotel room, and the Buick for cocaine, cocaine-related paraphernalia, and weapons. Baker and his colleagues executed the warrant and found cocaine base, packaging material, a digital scale, and a loaded firearm in appellants hotel room. The People then filed a complaint charging appellant with possessing cocaine base for sale; possessing a controlled substance with a firearm; possession of a firearm by a felon; possession of ammunition by a felon; and alleging various sentencing enhancements.
On December 14, 2006, appellant moved to: (1) quash and traverse the search warrant and to suppress evidence found in the search; (2) unseal the supporting affidavit; and (3) reveal the identity of the informant. Appellant requested an in camera hearing, asked the magistrate to question the informant at the hearing, and submitted a list of questions to be asked. In response, the People agreed that the court should conduct an in camera review of the sealed portion of the affidavit. The parties also agreed to conduct the preliminary hearing after the court resolved appellants motions.
The magistrate conducted an in camera hearing on December 21 and 22, 2006. Baker and the prosecutor were present; Deputy Sheriff Sergeant Matt Malone, who supervised the execution of the search warrant, also attended the hearing. After conducting the hearing, the magistrate denied all of appellants motions. It found sufficient grounds to keep the informants identity confidential and to keep the sealed portions of the affidavit sealed. The magistrate also concluded the warrant was supported by probable cause and did not contain any intentionally or knowingly false statements or omissions.
Before the preliminary hearing, a grand jury indicted appellant. On April 18, 2007, and pursuant to section 1538.5, appellant renewed his motion to quash and traverse the search warrant and his motion to unseal the search warrant affidavit. Appellant also moved, again, to disclose the identity of the informant. The court denied the motions on May 23, 2007 without conducting an in camera hearing. The court explained that "[t]he motion to quash is denied [because] the four corners of the document definitely give the Court probable cause." The court announced that it was denying the motion to traverse because, "theres nothing in [defendants] papers that would indicate any reason that anything should be excluded from the warrant and retested or that the officers made up anything or that anything material was omitted."
On July 18, 2007, appellant pleaded no contest to: (1) possessing cocaine base for sale (Health & Saf. Code, § 11351.5); (2) possessing a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); (3) being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and (4) being a felon in possession of ammunition (§ 12316, subd. (b)(1)). That same day, the court sentenced appellant to 14 years in state prison.
DISCUSSION
The Court Properly Denied Appellants Motion to Traverse and Quash the Warrant
Appellant asks this court to review the transcript of the in camera hearing to determine whether the search warrant "should have been quashed or traversed." In People v. Hobbs (1994) 7 Cal.4th 948, 974, the Supreme Court outlined the procedures to be followed where — as here — a defendant cannot reasonably be expected to make the preliminary showing to traverse or quash the search warrant because the search warrant affidavit is sealed. Where the defendant makes a properly noticed motion seeking to traverse or quash the search warrant, the trial court should conduct an in camera hearing pursuant to the guidelines set forth in Evidence Code section 915, subdivision (b) and our Supreme Courts opinion in People v. Luttenberger (1990) 50 Cal.3d 1, 20-24. (Hobbs, supra, 7 Cal.4th at p. 972; see also People v. Galland (2004) 116 Cal.App.4th 489, 492-493 [describing the Hobbs procedure].)
At the in camera hearing, the trial court must first determine whether there are sufficient grounds for maintaining the confidentiality of the informants identity. The court must then decide whether the extent of the sealing of the affidavit is necessary to avoid revealing the informants identity. (Hobbs, supra, 7 Cal.4th at p. 972.) If the trial court concludes that the affidavit is properly sealed and the defendant has moved to traverse the search warrant, the court should determine whether defendant has established that "the affidavit included a false statement made knowingly and intentionally, or with reckless disregard for the truth" and that "the allegedly false statement was necessary to the finding of probable cause." (People v. Luera (2001) 86 Cal.App.4th 513, 524-525; Franks v. Delaware (1978) 438 U.S. 154, 155-156; Hobbs, supra, 7 Cal.4th at p. 974.) If defendant has not satisfied this burden, the trial court should report this conclusion and enter an order denying the motion to traverse. (Hobbs, supra, 7 Cal.4th at p. 974.)
If the trial court concludes that the affidavit is properly sealed and the defendant has moved to quash the search warrant, the court "must determine whether, under the totality of the circumstances presented to the magistrate, there was a fair probability that contraband or evidence of a crime would be found at the location named in the warrant." (Luera, supra, 86 Cal.App.4th at p. 525; Hobbs, supra, 7 Cal.4th at p. 975.) If the trial court determines that the affidavit and related materials provide probable cause for the issuance of the warrant, the court should report this conclusion to the defendant and enter an order denying the motion to quash. (Luera, supra, at p. 525; see also Hobbs, supra, at p. 974.)
Our review is limited to determining whether the lower courts denial of appellants motion to traverse and quash the warrant was an abuse of discretion. In connection with our review, we review the entire record, including the sealed materials. (Hobbs, supra, 7 Cal.4th at p. 976.) We have reviewed the public and sealed portions of the affidavit and the transcript of the in camera hearing. The magistrate followed the procedures outlined in Hobbs and concluded that there was good cause to keep the informants identity confidential. The public and sealed portions of the affidavit in support of the search warrant supplied probable cause for the search; did not contain any material misrepresentations or omissions; set forth a fair probability contraband would be found in appellants hotel room; and did not show that the informant could have given evidence that might have resulted in appellants exoneration. As a result, we conclude that the lower court did not abuse its discretion in denying appellants motions to traverse and quash the search warrant. (Id. at p. 977.)
Relying on People v. Hulland (2003) 110 Cal.App.4th 1646, 1653, appellant argues that the magistrate erred in denying the motion to quash because information supplied by the informant was "stale." In Hulland, a police officer obtained a search warrant to search two residences and cars allegedly belonging to the defendant. (Id. at p. 1649.) The affidavit in support of the warrant, executed in November 2001, stated that the officer and a confidential informant had participated in a controlled buy in a parking lot in September 2001. (Ibid.) The Hulland court concluded that the information in the affidavit was too stale to furnish probable cause for the issuance of the search warrant because the officer waited 52 days after the controlled buy to obtain the warrant and because there was no evidence of any criminal activity at defendants residences. (Id. at pp. 1652-1653.)
There is no such staleness problem here. Unlike the police officer in Hulland, Baker did not wait 52 days after learning of the criminal activity being conducted in appellants room at the Executive Suites before obtaining the search warrant. Moreover, at the in camera hearing, Baker provided information establishing that there was "a continuing criminal enterprise" in appellants room at the Executive Suites. (People v. Gibson (2001) 90 Cal.App.4th 371, 381; see also 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000 & Supp. 2008) Illegally Obtained Evidence, § 106, p. 727 [discussing staleness doctrine and citing cases].) As a result, appellants reliance on Hulland is unavailing and his staleness argument has no merit.
Appellants Ineffective Assistance of Counsel Claim Fails
Appellant also contends that his trial counsel deprived him of his right to effective assistance of counsel by failing to "`fully litigate the validity of the warrant" at a special hearing pursuant to section 1538.5, subdivision (i). Appellants ineffective assistance of counsel claim seems premised on the notion that he would have prevailed on his motion to traverse and quash the warrant and to suppress the evidence found in the search if he had received an opportunity to question Baker at a special hearing.
Section 1538.5 permits a defendant to have one full evidentiary hearing, either at the preliminary hearing or at a special pretrial hearing in the superior court. Section 1538.5, subdivision (i) provides in relevant part: "If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure. . . . If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing."
"There are two components to an ineffective assistance of counsel claim: deficient performance of counsel and prejudice to the [defendant]." (In re Cox (2003) 30 Cal.4th 974, 1019 (Cox).) To prevail on a claim of ineffective assistance of counsel, the defendant must establish that "counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms." (People v. Williams (1997) 16 Cal.4th 153, 214; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) The defendant must also "show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (Williams, supra, 16 Cal.4th at p. 215.)
The Supreme Court has held that a defendant who raises the issue of ineffective assistance of counsel on appeal "must establish deficient performance based upon the four corners of the record. `If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (Cunningham, supra, 25 Cal.4th at p. 1003, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) For this reason, "claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding. . . ." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
The record here sheds no light on why counsel declined to present evidence at a special hearing. The record does, however, demonstrate that appellant was not prejudiced by trial counsels alleged shortcomings. (Cox, supra, 30 Cal.4th at pp. 1019-1020 [court deciding ineffective assistance of counsel claim need not address both components of claim if defendant makes insufficient showing on one].) As noted above, we have reviewed the sealed and public portions of the search warrant affidavit and transcript of the two-day in camera hearing. We find nothing that would suggest Baker made any false statements or omissions in the search warrant affidavit. Nothing in the transcript of the in camera hearing suggests that Baker was not telling the truth when he completed the search warrant affidavit, nor that the affidavit contains any false statements, misrepresentations, or omissions. As a result, appellant has not demonstrated — and cannot demonstrate — that there is a reasonable probability he would have obtained a more favorable result on the motion to traverse the warrant even if he had been able to question Baker at a special hearing. We reach the same conclusion with regard to appellants motion to quash the search warrant. The sealed and unsealed portions of the search warrant affidavit provided probable cause to search appellants hotel room. As a result, appellant cannot demonstrate he was prejudiced by trial counsels purported deficiencies.
DISPOSITION
The judgment is affirmed.
We concur:
Simons, J.
Needham, J.