Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, No. MF49862, John D. Kirihara, Judge.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
DETJEN, J.
This is an appeal from an order for probation imposed after defendant Hoyt Tim Gipson was convicted of two felony drug counts. We conclude the trial court did not err in denying defendant’s motion to quash a search warrant. We conclude the order for probation should be modified in certain respects. As modified, the order will be affirmed.
FACTS AND PROCEDURAL HISTORY
On November 18, 2008, sheriff’s deputies executed a search warrant at a rural property in Merced County. In one mobile home on the property, the deputies found personal property of defendant, a loaded shotgun, marijuana, methamphetamine, drug paraphernalia, and video surveillance equipment. The search warrant had been issued under seal to protect the identity of informants who provided information to investigators.
Defendant was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1); possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a), count 2); and felony possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a), count 3). The information also alleged as an enhancement to count 1 that defendant was personally armed with a firearm in the commission of the crime. (Pen. Code, § 12022, subd. (c).) Defendant pled not guilty and denied the enhancement allegation.
Defendant filed a motion seeking disclosure of the identity of the informants, seeking to traverse the warrant, and seeking suppression of the evidence seized under the warrant. The trial court provided a redacted version of the warrant and supporting affidavit to defense counsel. The court conducted an in camera hearing on the motions, from which defendant and his attorney were excluded and during which the court examined the search warrant affiant under oath. After the hearing, in open court, the court denied defendant’s motions. The trial court concluded the warrant and affidavit were properly sealed, those portions not previously given to defendant would remain sealed to protect the informants’ identities, and there was nothing in the affidavit that supported “defendant’s general allegations of either material misrepresentations or omissions in the affidavit.”
The charges were tried to a jury. The jury found defendant guilty of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) as a lesser included offense of count 1; guilty of count 2; and not guilty of count 3. On March 2, 2010, the court stayed imposition of sentence and admitted defendant to probation, one condition of which was participation by defendant in a six-month residential treatment program. Defendant filed a timely notice of appeal.
DISCUSSION
“Where, as here, due to the sealing of any portion or all of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required … to initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant), certain procedures should be followed in order to strike a fair balance between the People’s right to assert the informant’s privilege and the defendant’s discovery rights.” (People v. Hobbs (1994) 7 Cal.4th 948, 971-972, fn. omitted.) On a defendant’s properly noticed motion, the trial court is required to hold an in camera hearing outside the presence of defendant and his or her attorney. The court must determine whether the warrant affidavit (or any major part of it) properly must remain sealed, whether the identity or testimony of the informants is material to the issue of guilt and innocence (as opposed merely to the establishment of probable cause for the search warrant), and whether there is a reasonable probability that the affidavit contains material misrepresentations or omissions that affect the probable cause determination. (Id. at pp. 972-974.) If, as in this case, the court determines that portions of the affidavit must remain sealed to protect informants, that those portions do not present information material to the issue of defendant’s guilt or innocence, and that there is nothing to suggest misrepresentations in or omissions from the affidavit, the court “should simply report this conclusion to the defendant and enter an order denying the motion to traverse” or to quash the warrant. (Id. at p. 974.)
In this case, the trial court conducted the required in camera hearing. The court examined at length the deputy sheriff who signed the affidavit. That examination revealed that the deputy had personally contacted one of the confidential informants, whose identity was known to the deputy. That informant provided investigative leads to the deputy, who personally conducted the investigation that led to a second informant, whose identity also became known to the deputy. The deputy’s own investigation, reported in the affidavit, confirmed in all salient aspects the information provided by the informants.
The record on appeal does not contain the redacted version of the search warrant affidavit provided to defense counsel. By letter of April 25, 2011, this court directed appellate counsel to provide an agreed statement pursuant to California Rules of Court, rule 8.134, “consisting of a stipulation concerning the portions of the warrant and the affidavit previously provided to trial counsel.” On May 9, 2011, counsel filed a stipulation stating, in its entirety, “Appellant’s counsel David Annicchiarico spoke with trial counsel Anthony Green on April 29, 2011. Mr. Green stated that he received a copy of all six pages of the supporting affidavit. His copy had numerous redactions.” This response does not assist us in determining what portions were redacted. Because the record fails to establish the portions of the search warrant affidavit redacted and withheld from defense counsel, we are unable to review the trial court’s exercise of discretion in redacting the document and in determining, after the in camera hearing, that those
portions must remain confidential. Accordingly, defendant has forfeited the right to review the trial court’s determinations concerning redaction. (See People v. Siegenthaler (1972) 7 Cal.3d 465, 469.)
Having reviewed the search warrant, the affidavit, and the transcript of the in camera hearing, we conclude the information provided by the informants was not material to defendant’s guilt or innocence of the charges of which he was convicted. Accordingly, the trial court did not prejudicially err in denying defendant’s motion to discover the identity of the informants. Further, the investigation clearly established probable cause to search defendant’s home. The court did not err in denying the motion to traverse the search warrant.
Defendant also contends the court erred in imposing upon him a probation condition requiring that he have “no contact of any type with known felons, ex-felons, probationers, or parolees during the period of probation without prior permission of the probation officer.” He requests that we modify the condition to prohibit contact with persons known to defendant to be felons, ex-felons, probationers, or parolees. Respondent suggests that this limitation is inherent in the condition as presently phrased but has no objection to a modification that would make the limitation explicit.
As presently phrased, “the condition is constitutionally defective because it lacks an explicit knowledge requirement. Absent that qualification, the condition renders defendant vulnerable to criminal punishment for ‘associating with persons not known to him to be gang members.’ (People v. Lopez (1998) 66 Cal.App.4th 615, 628–629.) Given ‘the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, ’ the knowledge requirement in probation conditions ‘should not be left to implication.’ (People v. Garcia (1993) 19 Cal.App.4th 97, 102.)” (People v. Leon (2010) 181 Cal.App.4th 943, 950; see also In re Sheena K. (2007) 40 Cal.4th 875, 891.)
Accordingly, we will modify the condition of probation to require that defendant have no contact of any type with persons known to you to be felons, ex-felons, probationers, or parolees during the period of probation without permission of the probation officer. (See People v. Leon, supra, 181 Cal.App.4th at p. 950.)
Finally, defendant notes that the introductory paragraph of the order of probation states that defendant was convicted of possession of methamphetamine for sale (as originally charged in the information), instead of the lesser included offense of simple possession, a violation of Health and Safety Code section 11377, subdivision (a) (as found by the jury). The court recognized the error in the order for probation, which had been prepared as a recommended order by the probation officer, and the minute order of the sentencing hearing states that the court “notes correction to counts convicted.” The correction was not made on the face of the order, however. We will modify the introductory paragraph of the March 2, 2010, “order of probation” to state that defendant was convicted of the crimes of possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a), and possession of a controlled substance while armed with a firearm, in violation of Health and Safety Code section 11370.1, subdivision (a).
DISPOSITION
The judgment (order for probation) is modified in the following ways: (1) The introductory paragraph of the order is modified to state that defendant was convicted of possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a), and possession of a controlled substance while armed with a firearm in violation of Health and Safety Code section 11370.1, subdivision (a). (2) Paragraph 30 of the conditions of probation is modified to state: “Have no contact of any type with persons known to you to be felons, ex-felons, probationers, or parolees during the period of probation without prior permission of the probation officer.”
As modified, the judgment (order for probation) is affirmed.
WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.