Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR-07-78408
Marchiano, P.J.
Defendant Scott L. Depree pleaded guilty to two counts of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)) and was sentenced to serve two years eight months in prison. The pleas were entered after denial of defendant’s motions to suppress evidence, traverse and quash a search warrant, and compel disclosure of a confidential informant. His appeal challenges the rulings on these motions. Appellate review of the issues was waived, and we find no error in the rulings in any event. We therefore affirm the judgment.
I. BACKGROUND
In a search of defendant’s home and a pump house behind the residence pursuant to a search warrant on May 31, 2007, police found a loaded.38 caliber revolver, a loaded.12 gauge shotgun, a stun gun, a can of pepper spray,.10 grams of methamphetamine, a scanner, two digital scales, and packaging material. The search warrant was issued on May 30, 2007, based on the affidavit of Special Agent Darren Brewster; a portion of the affidavit, Exhibit A, was sealed to protect the identity of a confidential informant. In the unsealed portion of the affidavit, Brewster set forth his training and experience, and his belief that the search would yield methamphetamine and indicia of methamphetamine sales.
At an in camera hearing on defendant’s motions, the court reviewed the sealed portion of the affidavit and the police report in the case, and took testimony from agent Brewster. The court denied the motions, finding that Exhibit A to the affidavit was properly sealed to protect the identity of the informant, and that allegations of falsehoods and material omissions in the affidavit were unsubstantiated. Defendant entered his pleas after the rulings on the motions, and did not proceed with a preliminary hearing.
II. DISCUSSION
A. Waiver
People v. Richardson (2007) 156 Cal.App.4th 574, 581 (Richardson), persuasively holds that where, as here, the defendant pleads guilty to a magistrate immediately after denial of a motion to suppress, the defendant may not thereafter seek appellate review of the ruling on the search and seizure issue because that issue has not been raised in the superior court as required by Penal Code section 1538.5, subdivision (m). (See People v. Lilienthal (1978) 22 Cal.3d 891, 895-896 (Lilienthal); People v. Garrido (2005) 127 Cal.App.4th 359, 364 [Lilienthal rule continues to apply after trial court unification].) Nor can defendant, without a certificate of probable cause, raise an ineffective assistance of counsel claim on appeal based on the failure to preserve the search and seizure issue for appellate review. (Richardson, supra, 156 Cal.App.4th at pp. 595-596.)
B. Hobbs Review
Defendant asks us to evaluate the decision to seal Exhibit A, and the merits of the probable cause showing, under the standards set out in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). Even if the issues had been preserved, the appeal would fail.
(1) Sealing of the Affidavit
Defendant questions the need for sealing a portion of the warrant affidavit, and the extent of the sealing. The issues are “whether valid grounds exist for maintaining the informant’s confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity.” (Hobbs, supra, 7 Cal.4th at p. 973.) We have reviewed Exhibit A, the police report, and the transcript of the in camera hearing. Based on that review, we conclude that there were valid grounds for protecting the identity of the confidential informant, that disclosing Exhibit A would have revealed or tended to reveal the informant’s identity, and that the trial court made adequate inquiries at the in camera hearing before making these determinations. Accordingly, there was no error with respect to the sealing of Exhibit A.
(2) Material Misrepresentations or Omissions in the Affidavit
“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, including any testimony offered at the in camera hearing. 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.’ ” (Hobbs, supra, 7 Cal.4th at p. 974.) In our review of Exhibit A and the transcript of the in camera hearing, we have found nothing to suggest that there were any material omissions or misstatements in the warrant affidavit, and no deficiency in the trial court’s examination of those issues.
(3) Probable Cause
“[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen. Code, § 1538.5), 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.” (Hobbs, supra, 7 Cal.4th at p. 975.) Our review has confirmed that the affidavit as a whole established probable cause to issue the warrant in this case. There were no grounds to suppress the evidence recovered in the search.
We take judicial notice of our order filed this date denying defendant’s petition for writ of habeas corpus (docket no. A124421), which reads as follows:
III. DISPOSITION
The judgment is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“Petitioner contends that his trial counsel was incompetent for failing to preserve suppression issues for appeal, including the issues raised by the recent order in Moeller v. Lockyer (E.D.Cal. Feb. 20, 2009) 2009 WL 426089 (Moeller), which found that in camera hearings under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), conducted without defense counsel present, violate the defendant’s Sixth Amendment right to counsel, and that the violation is not subject to harmless error analysis. (Moeller, supra, 2009 WL 426089 at p. *13.) We need not reach the issue of counsel’s alleged incompetence, because the Moeller-based argument must be rejected in any event.
“Moeller cannot be squared with Hobbs, which we are of course bound to follow. The Moeller magistrate found that, “[w]hile maintaining the identity of a confidential informant is important, such a concern should not outweigh or trump a criminal defendant’s Sixth Amendment right to counsel at a critical stage of the proceeding.” (Moeller, supra, 2009 WL 426089 at p. *12.) Hobbs, however, determined that “ ‘[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.’ ” (Hobbs at p. 968, quoting People v. Castillo (N.Y. 1992) 607 N.E.2d 1050, 1052 (Castillo).) Hobbs followed Castillo, a case that rejected the claim that “ ‘a suppression procedure conducted without [the defendant’s] participation violated[d] his constitutional right to due process of law and the effective assistance of counsel,’ ” and followed Castillo and other cases that had “uniformly [found] that utilization of an in camera review procedure adequately safeguards both parties’ rights.” (Hobbs, supra, 7 Cal.4th at pp. 968, 969.) The Hobbs court did not share the Moeller magistrate’s belief that our trial courts could not adequately protect the defendant’s interests in this context. (Compare Hobbs at p. 970 with Moeller at p. *12.)
“The petition for writ of habeas corpus is denied.”