Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Jerry E. Johnson and John Joseph Cheroske, Judges, No. TA096517
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and Eric J. Kohn, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Tearen Raynell Moore appeals from the judgment entered following his negotiated plea of no contest to a single count of possession of marijuana for sale. Defendant asks this court to review the sealed portions of a search warrant affidavit to determine whether the trial court erred by denying his motion to quash and traverse the warrant and suppress evidence, and his motion to disclose the identity of a confidential informant. After reviewing the entire affidavit and warrant, we conclude the trial court properly denied defendant’s motion to quash and traverse and suppress. We do not review the denial of defendant’s motion to disclose because defendant’s plea of nolo contendere precludes our doing so.
BACKGROUND
On April 2, 2008, Los Angeles Police Department officers searched a house pursuant to a warrant. The officers found plastic bags containing approximately 105 grams of marijuana. Defendant was the only person inside the house.
Defendant filed a motion to unseal, quash, and traverse the search warrant and suppress evidence and a motion to disclose the identity of the confidential informant who provided the police with information contained in their warrant application. After reviewing the sealed affidavit in support of the warrant in camera, the court denied the motions. Defendant then pleaded nolo contendere to the sole charge of possession of marijuana for sale (Health & Saf. Code, § 11359) and admitted that he had one prior serious or violent felony conviction. The court sentenced defendant to 16 months in prison. Defendant obtained a certificate of probable cause for appeal.
DISCUSSION
Defendant asks this court to review the sealed portions of the search warrant affidavit to determine whether the trial court properly denied his motions to quash and traverse the search warrant, suppress evidence, and disclose the identity of the confidential informant. Defendant’s appeal does not address the motion to unseal the warrant application.
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 that “certain procedures should be followed” when a confidential informant has been used. (Id. at p. 972.) If the defendant questions the issuance of such a warrant, 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.” (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, 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, at p. 975.)
We have reviewed the search warrant and affidavit, including the sealed portion of the affidavit. Based on our independent examination of those materials, we conclude that it is not reasonably probable defendant would have prevailed on his motions to quash or traverse. Although the trial court said little on the record during the in camera hearing, its decision on the motions implies a determination that valid grounds existed for maintaining the informant’s confidentiality and that sealing a portion of the affidavit was necessary in order to avoid revealing the informant’s identity. We have examined the entire affidavit for possible misleading statements or omissions and found nothing that leads us to suspect that any material misrepresentations or omissions were made. Finally, we conclude the affidavit established probable cause for the issuance of the search warrant for defendant’s residence. Accordingly, the trial court properly denied defendant’s motion to unseal, quash, and traverse. Because denial of those aspects of the motion eliminated defendant’s theoretical basis for suppressing of the evidence, the court also properly denied defendant’s motion to suppress.
Defendant’s nolo contendere plea precludes review of the trial court’s denial of defendant’s motion to disclose the confidential informant’s identity, notwithstanding the certificate of probable cause. (Peoplev. Collins (2004) 115 Cal.App.4th 137, 148-149.) He alleged that “the informant is a material witness on the issue of guilt.” His argument on the motion was limited to the importance of the confidential informant in providing information that the defense might use “to establish a defense to the possession for sale....” The issue went only toward his guilt or innocence—an issue resolved by defendant’s plea. (Id. at p. 148.) The trial court’s issuance of a certificate of probable cause did not render the issue reviewable. (Id. at p. 149.)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., CHANEY, J.