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People v. Earles

California Court of Appeals, Second District, First Division
Apr 13, 2009
No. B202130 (Cal. Ct. App. Apr. 13, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. YA064095 Eric C. Taylor, Judge.

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.


WEISBERG, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

INTRODUCTION

Appellant Manuel James Earles appeals from the judgment entered following a jury trial in which he was convicted of possession of a firearm by a felon and possession of cocaine base for sale. Appellant requests this court to review the record of in camera proceedings stemming from his motions to quash, traverse, and unseal a search warrant. He also contends the exclusion of his attorney from ex parte, in camera proceedings pertaining to his motions violated his right to counsel. We conditionally reverse a portion of the judgment and remand with directions.

FACTS

Gardena Police Department officers twice searched appellant’s house pursuant to two warrants. During the first search, on December 20, 2005, the police found a loaded shotgun, several calibers of rifle ammunition, and several large bags and other containers of marijuana. Appellant was charged with possession of marijuana for sale (count 2) and possession of a firearm by a felon (count 1) and released on bail. In December 2006, the police observed appellant selling a controlled substance from the same residence. They obtained a new warrant and searched appellant’s home on January 4, 2007. During the second search, the police found five small plastic bags containing cocaine base inside a larger plastic bag, $1,480 in cash, and some live nine-millimeter ammunition in appellant’s bedroom. The prosecutor amended the information to add charges of possession of cocaine base for sale (count 3) and possession of ammunition (count 4), with allegations the cocaine possession occurred within 1,000 feet of an elementary school and appellant was on bail at the time he committed counts 3 and 4.

The jury convicted appellant of possessing a firearm on December 20, 2005 (count 1) and possessing cocaine base for sale on January 4, 2007 (count 4). It acquitted him of possessing marijuana for sale on December 20, 2005 (count 2) and possessing ammunition in violation of Penal Code section 12316, subdivision (b)(1) on January 4, 2007 (count 3). The jury found the school proximity allegation was not true. Appellant admitted he was on bail when he possessed the cocaine base. The trial court sentenced appellant to six years eight months in prison, consisting of a principal term of four years for possession of cocaine base for sale (count 4), a consecutive subordinate term of eight months for possession of a firearm by a felon (count 1), and two years for the on-bail enhancement pertaining to count 4.

DISCUSSION

Appellant filed a motion to quash and traverse the warrant upon which the December 2005 search was based, unseal the supporting affidavit, and suppress the fruits of the December 2005 search. On June 12, 2007, the court reviewed the sealed affidavit in camera and interviewed Detective Antonio Marin, who obtained the warrant, using questions supplied by appellant, supplemented by the court’s own questions. Detective Marin was not placed under oath for the in camera interview. The court concluded that the entire affidavit was properly sealed and the warrant was supported by probable cause.

Appellant simultaneously filed a separate motion to quash the December 2006 warrant and suppress the fruits of the January 2007 search conducted pursuant to that warrant. Appellant does not challenge the denial of that motion.

Appellant asks this court to review the sealed affidavit and the reporter’s transcript of the in camera proceedings regarding the December 2005 warrant to determine whether the trial court properly denied the motion.

All or a part of a search warrant affidavit may be sealed when disclosure will reveal or tend to reveal the identity of a confidential informant. (People v. Hobbs (1994) 7 Cal.4th 948, 971 (Hobbs).) Because sealing a portion of the affidavit may prevent the defendant from making the showing normally required to challenge the issuance of a warrant, the Supreme Court has instructed trial courts to follow specific procedures when defendant questions the issuance of a warrant supported by a fully or partially sealed affidavit. (Id. at p. 972.) The trial court must hold an in camera hearing at which the prosecutor may be present, but from which the defendant and defense counsel are ordinarily excluded. (Id. at pp. 972-973.) “The court... must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant’s reliability. [¶] Furthermore, because the defendant’s access to the essence of the affidavit is curtailed or possibly eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues.” (Id. at p. 973.)

If the trial court concludes the affidavit was 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 , quoting Franks v. Delaware (1978) 438 U.S. 154, 155-156 [98 S.Ct. 2674].) “If the 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.” (Hobbs, supra, at p. 974.)

If the trial court concludes the affidavit was properly sealed and the defendant has moved to quash the warrant, “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.” (Hobbs, supra, 7 Cal.4th at p. 975 , quoting Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct. 2317].) “If the court determines... that the affidavit and related materials furnished probable cause for issuance of the warrant... the court should simply report this conclusion to the defendant and enter an order denying the motion to quash.” (Hobbs, supra, 7 Cal.4th at p. 975.)

Detective Marin’s unsworn statements to the court at the June 12, 2007 in camera hearing did not constitute testimony, as required by Hobbs. Although Hobbs vests the trial court with discretion in determining whether it is “necessary and appropriate to call and question the affiant,” the numerous references to “testimony” in Hobbs clearly indicate that any such questioning must be conducted under oath. (Hobbs, supra, 7 Cal.4th at pp. 973-975.) Accordingly, the June 12, 2007 in camera hearing did not satisfy the requirements of Hobbs.

In addition, it appears that the trial court may not have retained a copy of the December 2005 sealed affidavit and search warrant. On December 10, 2008, we ordered the trial court to augment the appellate record with the December 2005 search warrant, the affidavit, and any other materials supporting the search warrant application. Three weeks after the deadline for compliance with this augmentation order, the trial court submitted an envelope sealed by the Gardena Police Department. That envelope contained only an unsigned and undated “Affiant’s Statement,” a police report, and a Department of Motor Vehicles printout pertaining to appellant. Neither the signed affidavit nor the signed search warrant was included. Neither the envelope nor any of the documents in it bear a superior court filing stamp. It therefore appears the court clerk may have obtained these documents from the prosecutor or police department in response to our augmentation order. Under the circumstances, we cannot determine whether the documents submitted in response to our augmentation order are the same documents reviewed by either the magistrate who issued the December 2005 warrant or by Judge Taylor at the June 12, 2007 in camera hearing. The reporter’s transcript of the in camera hearing does not describe the particular documents the court reviewed or even refer to a review of documents.

Accordingly, on the state of the appellate record, we cannot determine whether the trial court properly denied appellant’s motions to unseal, quash, traverse, and suppress. We therefore conditionally reverse the judgment with respect to count 1 (possession of a firearm by a felon) and remand for the trial court to conduct a new in camera hearing in full compliance with Hobbs. At that hearing, (1) all witnesses must be placed under oath, (2) the court must examine the complete, signed December 2005 search warrant along with the complete, signed affidavit and any other materials submitted to the magistrate in support of the application for the warrant, and (3) the court must make an adequate record regarding the materials it reviews. The trial court must ensure that its record contains copies of the complete, signed search warrant; complete, signed affidavit; and any other supporting materials submitted to the issuing magistrate. These documents may be filed under seal, but must be retained by the superior court to facilitate future appellate review. If the complete, signed affidavit and complete, signed warrant are not part of the trial court’s record, the court must conduct a full hearing to reconstruct or settle the record as to the contents of the missing warrant and affidavit. In this regard, the court may find People v. Galland (2008) 45 Cal.4th 354, 370-373 instructive. The settled or reconstructed record must be adequate to facilitate appellate review of the trial court’s ruling upon appellant’s motion to unseal, quash, traverse, and suppress.

If, after conducting the in camera review, the trial court determines that appellant’s motion to unseal, quash, traverse, and suppress should again be denied, it shall reinstate the judgment. If the judgment is reinstated, appellant may again challenge on appeal the propriety of the trial court’s denial of the motions to quash, traverse, and/or suppress, as the record will then be adequate to provide for the appellate review we were unable to conduct in the present appeal. If the trial court grants appellant’s motions to quash, traverse, and/or suppress, it shall proceed as if our reversal of the judgment with respect to count 1 were unconditional.

Appellant’s on-bail enhancement in count 4, which required conviction of at least one of the prior offenses for which appellant was on bail at the time of his January 2007 arrest, i.e., count 1 or 2, is suspended pursuant to the terms of Penal Code section 12022.1, subdivision (g). If the trial court reinstates the judgment with respect to count 1, the enhancement may be reimposed pursuant to the terms of Penal Code section 12022.1, subdivision (g). Appellant’s conviction of possession of cocaine base for sale (count 4) stemmed from a search conducted in January 2007, pursuant to the December 2006 warrant. Appellant challenges only the trial court’s denial of his motions pertaining to the December 2005 warrant. Although the affidavit in support of the December 2006 warrant mentioned the December 2005 warrant and the search conducted pursuant to that warrant, the December 2006 affidavit relied primarily upon a controlled purchase of cocaine and police surveillance of appellant’s residence, both of which occurred in December of 2006. Appellant has not suggested that the introduction of any evidence seized pursuant to the December 2005 warrant tainted his conviction in count 4 or that any potential defect regarding the December 2005 warrant otherwise resulted in error or prejudice with respect to his conviction in count 4. Accordingly, the conditional reversal is limited to count 1.

DISPOSITION

The order denying appellant’s motions to quash and traverse the warrant upon which the December 2005 search was based, unseal the supporting affidavit, and suppress the evidence obtained in the December 2005 search is reversed. The judgment is conditionally reversed with respect to count 1 to allow the trial court to conduct a new in camera hearing in full compliance with Hobbs and proceed as directed in the body of this opinion. The on-bail enhancement is suspended pursuant to Penal Code section 12022.1, subdivision (g).

We concur: MALLANO, P. J. ROTHSCHILD, J.


Summaries of

People v. Earles

California Court of Appeals, Second District, First Division
Apr 13, 2009
No. B202130 (Cal. Ct. App. Apr. 13, 2009)
Case details for

People v. Earles

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL JAMES EARLES, Defendant…

Court:California Court of Appeals, Second District, First Division

Date published: Apr 13, 2009

Citations

No. B202130 (Cal. Ct. App. Apr. 13, 2009)