Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09CF1262, James P. Marion, Judge.
Guillermo Cabrera, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
Before Rylaarsdam, Acting P. J., O’Leary, J., and Moore, J.
Appellant, Alfredo Ruvalcaba Lariz, seeks appellate review of the sealed portion of the search warrant affidavit and the transcript of the in camera hearing conducted as a result of filing motions to reveal the identity of a confidential informant, motion to suppress evidence obtained as a result of the warrant, and motions to traverse and quash the search warrant.
FACTS
Two days after a magistrate signed a search warrant authorizing a search of the business “Alfredo’s Pizza” in Santa Ana, narcotics were discovered during a search of the premises. At the preliminary hearing, a Santa Ana police officer testified that when he searched “Alfredo’s Pizza, ” he discovered 15 bindles of cocaine inside a napkin dispenser, a digital scale and numerous individual baggies inside a computer bag, and a briefcase with 16 bindles of cocaine and documents containing Lariz’s name inside. According to the officer, everything discovered during the search was found in an area where only the owner or employees of the business had access. As a result of the search, Alfredo Ruvalcaba Lariz was arrested and charged in an information with possession of cocaine for sale and an enhancement for suffering a conviction for the same offense 23 years earlier.
During pretrial proceedings, Lariz filed a motion to suppress, motion to quash and traverse the search warrant, motion to unseal the affidavit in support of the search warrant, and a motion to disclose the name, address, and current whereabouts of the informant. Attached to the motions as exhibits were a copy of the search warrant and the statement of probable cause prepared by the affiant officer. Page two of the five page statement of probable cause refers to the “Confidential Attachment” ordered sealed by magistrate.
In response to the motions filed by Lariz, the trial court conducted an in camera hearing pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). At the conclusion of the hearing, the court denied Lariz’s motions and ordered the “Confidential Attachment” to remain sealed. After the court denied the motions, Lariz withdrew his not guilty plea and pleaded guilty to possession of cocaine for sale. The enhancement was dismissed and Lariz was placed on formal probation with terms and conditions that include 270 days in county jail, stayed, pending outcome of this appeal.
On appeal, Lariz asks this court to conduct an independent review of the sealed and unsealed portions of the search warrant affidavit and the sealed transcript of the in camera hearing to determine whether the trial court complied with all aspects of the Supreme Court’s decision in Hobbs, supra, 7 Cal.4th 948. We independently review the public and sealed portions of the records in this case, find the trial court complied with Hobbs, and find no appealable issues.
DISCUSSION
In Hobbs, the Supreme Court explained the procedures that must be followed when the affidavit in support of a search warrant is sealed to protect the identity of the confidential informant. Hobbs states that “[o]n a properly noticed motion... seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing pursuant to the guidelines set forth in section 915, subdivision (b), and... Luttenberger [1990] 50 Cal.3d [1] at pages 20-24.” (Hobbs, at p. 972.) According to Hobbs, the trial court’s first step at the in camera hearing is to “determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant’s confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing [the informant’s] identity.” (Id. at p. 973.)
If the affidavit is properly sealed, and the defendant makes a challenge 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.’ [Citation.]” (Hobbs, at p. 974.) If the defendant makes a challenge to quash the warrant, Hobbs states “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. (Id. at p. 975.)
After independently reviewing the search warrant, the sealed and unsealed portions of the affidavit in support of the search warrant, and the sealed transcript of the in camera hearing, we conclude the trial court followed the procedures set forth in Hobbs at pages 972 – 975. Based on our review of the transcript of the in camera hearing, the trial court considered the testimony of the affiant officer and we agree with the trial court’s reason to maintain the confidentiality of the informant’s identity. The trial court also considered revealing a segment of the sealed affidavit, but because information about the informant is woven throughout the affidavit, disclosing any portion of the sealed affidavit would risk revealing the identity of the confidential informant.
With respect to the motion to traverse and the requirement that the defendant allege a false statement or material misrepresentation or omission in the statement of probable cause, Lariz asked the trial court to consider the credibility or bias of the informant if it turned out the informant was a former employee at Alfredo’s Pizza who had been caught stealing three years earlier in 2006. In addition to its finding that the sealed portion of the affidavit did not contain false or material misrepresentations or omissions, the trial court also raised the issue of the confidential informant’s employment history and correctly concluded that it had no bearing on the informant’s credibility. We also conclude after our independent review that the sealed portion of the affidavit discloses no basis to suspect a knowingly or recklessly false statement or material misrepresentation or omission on the issue of probable cause in support of the search warrant. As such, the trial court correctly denied Lariz’s motion to traverse the search warrant.
After an independent review of the sealed portions of the search warrant affidavit, we also find that based on the “totality of circumstances, ” there was more than a “fair probability” that contraband or evidence of a crime would be found at Alfredo’s Pizza. As such, the trial court also correctly denied the motion to quash. (Hobbs, at p. 975.)
With respect to Lariz’s request for this court to review the sealed portions of the record regarding his motion to reveal the identity of the confidential informant, Hobbs holds that a guilty plea bars any appeal from the denial of a motion to discover the identity of the confidential informant for the purpose of determining whether the informant was a material witness to guilt or innocence. (Hobbs, at p. 975-976.) Nonetheless, our review of the sealed portion of the affidavit confirms the confidential informant was not a material witness on the issue of guilt to the charge of possession of cocaine for sale.
Accordingly, after our independent review of the entire record, we conclude the trial court properly denied Lariz’s motions to reveal the identity of the confidential informant, motion to suppress evidence, and motions to quash and suppress the warrant.
DISPOSITION
The judgment is affirmed.