Opinion
C039168.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JOYCE IRENE RUSSELL, Defendant and Appellant.
This is defendant Joyce Irene Russells second appeal from the judgment of conviction, following her plea of no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378), for which she was sentenced to three years in prison. In her first appeal, we reversed the judgment and remanded the matter to the trial court with directions to reconstruct the public and sealed portion of the affidavit in support of the search warrant. (People v. Frank Howard Anderson, et al. (Feb. 15, 2001, C031409).) A hearing was held for that purpose, after which the trial court reinstated the judgment.
In the present appeal, defendant contends the superior court lacked jurisdiction under Penal Code section 1382 to reconstruct the record; the reconstruction proceedings are barred by excessive delay, laches, estoppel, and res judicata and violated her constitutional rights under the Fourth, Sixth, and Fourteenth Amendments; the trial courts failure to disclose the identity of the confidential informant and unseal the affidavit violated those same constitutional rights; the courts failure to follow the procedures mandated by People v. Hobbs (1994) 7 Cal.4th 948, 873 P.2d 1246 (Hobbs) was an abuse of discretion; and any waiver of these claims resulted in ineffective assistance of counsel.
All further section references are to the Penal Code unless otherwise designated.
Respondent contends this appeal should be dismissed because the notice of appeal fails to contain the requisite statement that the appeal is based upon cognizable grounds as required by rule 31(d) of the California Rules of Court (hereafter rule).
We find no deficiency in the notice of appeal. However, we find the trial court failed to conduct an adequate in camera examination to satisfy the requirements of Hobbs, supra. We shall therefore remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken primarily from our opinion in defendants first appeal. We have taken judicial notice of the record in that appeal.
On December 23, 1997, Placer County Narcotics Task Force officers and an agent with the Bureau of Narcotics Enforcement went to defendants residence at 5524 Brome Court, Citrus Heights, pursuant to a search warrant. Probable cause for the issuance of the warrant was based upon an affidavit, which was predicated upon a sealed exhibit.
The officers were met at the door by defendant. The officers entered the residence, and handcuffed her. The officers searched the residence and found two bags of methamphetamine in a bedroom. Another quarter pound of methamphetamine, an Ohaus scale, and several zip lock baggies were located in the garage. In the master bathroom, the officers recovered, among other things, two additional bags of methamphetamine, two pay-and-owe sheets, along with another gram scale that contained a substantial amount of residue.
Frank Anderson told the officers he and defendant had been married for 20 years and that he knew she sold methamphetamine on a regular basis. He stated she normally conducted methamphetamine transactions in the garage and would sometimes give him some to use. Defendant admitted all of the methamphetamine belonged to her, the majority of which she had purchased that day for $ 6,000. It was estimated the seized methamphetamine, if sold in .25 gram lots had a street value between $ 8,000 and $ 12,000.
Defendant was charged in count 1 with possession of methamphetamine for purpose of sale (Health & Saf. Code, § 11378), in count 2 with possession of marijuana for purpose of sale (Health & Saf. Code, § 11359), in count 4 with providing a place for the manufacture and storage of methamphetamine (Health & Saf. Code, § 11366.5, subd. (a)), and in count 5 with possession of heroin (Health & Saf. Code, § 11350, subd. (a)). It was further alleged as to count 1 that defendant possessed for sale and sold an amount of methamphetamine in excess of that described in section 1203.073, subdivision (b)(2), and as to counts 1 and 2, she was personally armed with a firearm. ( § 12022, subd. (c)).
Defendant moved to quash the search warrant and to suppress the seized evidence on the ground the affidavit in support of the search warrant did not provide sufficient information to establish probable cause. She also moved to traverse the warrant and disclose the identity of the informant and the sealed affidavit in support of the search warrant. The motion was denied.
Defendant pleaded no contest to count 1, was sentenced to the upper term of three years imprisonment, and was ordered to pay various fines, fees, and restitution. She appealed from the denial of the suppression motion.
In an unpublished opinion, filed February 15, 2001, we reversed the judgment of conviction and remanded to the trial court with directions to set aside its order denying the motion to suppress evidence and to dismiss the action unless it can reliably reconstruct the affidavit and sealed exhibit in support of the search warrant.
After issuance of the remittitur, the trial court held a hearing to reconstruct the record, found the affidavit had been reliably reconstructed, and reinstated the judgment of conviction. Defendant appeals from the judgment.
DISCUSSION
I
Sufficiency of the Notice of Appeal
Respondent contends this appeal should be dismissed for failure to comply with section 1237.5 and rule 31(d) because the notice of appeal fails to contain a clear written statement that the appeal is based upon noncertificate grounds. Defendant has not filed a reply brief responding to this claim. Nevertheless, we find it has no merit.
The notice of appeal states as follows:
"NOTICE IS HEREBY GIVEN that defendant appeals from the entire judgment of this Court, reinstated on August 9, 2001 in action No. 97F10748.
This matter is appealable. (Penal Code § 1237; People v. Tijerina (1969) 1 Cal.3d 41, 48, 81 Cal.Rptr. 264, 459 P.2d 680; People v. Robinson (1954) 43 Cal.2d 143, 145, 271 P.2d 872; People v. Gilchrist (1982) 133 Cal. App. 3d 38, 42, 183 Cal. Rptr. 709, nl, 183 Cal.Rptr. 709 and Penal Code § 1538.5.)
Further, NOTICE IS HEREBY GIVEN that defendant appeals from the courts denial of her motion to dismiss pursuant to Penal Code § 1382 on August 2, 2001 and the courts ruling granting the Peoples `reconstruction of the `Hobbs portion of the search warrant affidavit on August 9, 2001. The court orally granted defendants request for a certificate of probable cause on August 9, 2001."
Section 1237 authorizes an appeal by a criminal defendant "from a final judgment of conviction except as provided in
. . . Section 1237.5." ( § 1237, subd. (a).) Section 1237.5 provides in pertinent part: "no appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [P] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [P] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
The second paragraph of rule 31(d) provides an exception to the rule stated in section 1237.5: "If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code, the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds."
Thus, when an appeal by a defendant is taken from a guilty plea or plea of no contest on grounds falling within either of the two specified grounds stated in rule 31(d), compliance with section 1237.5 is not required. The appeal is one brought pursuant to section 1237. (People v. Jones (1995) 10 Cal.4th 1102, 1108, 898 P.2d 910; Hobbs, supra, 7 Cal.4th at pp. 956-957.) However, the notice of appeal must contain a statement that it is based upon noncertificate grounds. (People v. Jones, supra, 10 Cal.4th at p. 1108 .)
Defendant moved to quash the search warrant and suppress the seized evidence. The motion was denied. She then entered a plea of no contest to Health and Safety Code section 11378, and filed an appeal. We reversed the judgment and remanded the matter to the trial court. After holding the hearing to reconstruct the record, the trial court reinstated the judgment and defendant filed a notice of appeal. Defendant did not file a written statement executed under oath or penalty of perjury showing cognizable grounds going to the legality of the proceedings, nor did the trial court file a formal certificate of probable cause for the appeal. Defendant merely filed the notice of appeal as set out. Respondent contends the notice of appeal fails to sufficiently state the grounds allowable under rule 31(d). We disagree.
At the end of the oral proceedings, the trial court stated it would issue a certificate of probable cause and its minute order states that it "certifies there is probable cause to appeal todays decision . . . ."
Respondent does not contend the claims raised in defendants opening brief are subject to the requirements of section 1237.5. Indeed, none of the issues raised on appeal challenge the validity of the plea.
Rule 31(d) establishes a screening mechanism for the aid and benefit of superior court clerks regarding their obligation to prepare an appellate record. The requirement to specify appropriate noncertificate grounds in the notice of appeal is not jurisdictional, it only serves to give the clerk notice that the statement of jurisdictional grounds and the certificate required by section 1237.5 are not necessary. (People v. Knauer (1988) 206 Cal. App. 3d 1124, 1128-1130, 253 Cal. Rptr. 910; People v. Jones, supra, 10 Cal.4th at p. 1110.)
A notice of appeal shall be liberally construed in favor of its sufficiency. (Rule 1(a); Smith v. Ostly (1959) 53 Cal.2d 262, 265, 1 Cal. Rptr. 340, 347 P.2d 684; People v. Robinson (1954) 43 Cal. 2d 143, 145.) Where the notice of appeal "wholly fails to satisfy" the requirement of rule PAGE CONTAINED FOOTNOTES 31(d) that it state the noncertificate grounds of appeal, the appeal will be deemed inoperative. (People v. Earls (1992) 10 Cal.App.4th 184, 191-192; People v. Ballard (1985) 174 Cal. App. 3d 982, 988, 220 Cal. Rptr. 323.)
Here, defendants notice of appeal is not wholly silent as to the noncertificate grounds of the appeal. We must therefore apply the rule of construction in favor of its sufficiency. (Rule 1(a).) The notice states it is appealable under section 1237 and 1538.5. The notice references sections 1237 and 1538.5, along with the statements referencing defendants August 2, 2001, motion challenging the validity of the reconstruction proceedings on remand and the ruling on the Hobbs motion challenging the search warrant. It therefore gives sufficient notice the appeal is based on grounds "occurring after entry of the plea which do not challenge its validity" (the section 1382 motion) "or involving a search or seizure" (the Hobbs motion).
Accordingly, because the notice was sufficient, we find defendants appeal is operative.
II
Speedy Trial
Defendant contends the trial court proceedings on remand were barred under the speedy trial provisions of section 1382 which requires that the defendant be brought to trial within 60 days after the filing of the remittitur in the trial court. She argues the remittitur must be deemed filed in the superior court as of the date this court issued it. Respondent contends this claim is without merit because the statutory period commences when the remittitur is filed in the superior court, not when it is issued by this court. Because the statutory language is clear, we agree with respondent.
This court issued the remittitur on April 17, 2002. It was received and filed in the trial court on April 20, 2002. The proceedings to reconstruct the record began on June 19, 2002, the 60th day following the filing of the remittitur in the trial court. Defendant moved to dismiss the proceedings for lack of timeliness under section 1382. The trial court denied the motion, finding the 60-day period for instituting proceedings begins to run from the date the remittitur is filed in the trial court.
Section 1382, subdivision (a)(2), provides in pertinent part, "the court, unless good cause to the contrary is shown, shall order the action to be dismissed . . . in a felony case, when a defendant is not brought to trial within 60 days . . . after the filing of the remittitur in the trial court . . . ." (Emphasis added.) The statute clearly states the 60-day period commences when the remittitur is filed in the trial court.
Gallenkamp v. Superior Court (1990) 221 Cal. App. 3d 1, 270 Cal. Rptr. 346 (Gallenkamp) is dispositive. There, the Kern County Superior Court clerks office failed to file timely remittiturs after opinions of the appellate department became final. (Id. at p. 5-7, 11.) The appellants in a number of the cases claimed their speedy trial rights under section 1382 were violated. (Id. at pp. 14-15.) At that time, section 1382 provided in relevant part: "The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases . . . after the remittitur is filed in the trial court . . . ." (Former § 1382, subd. (c); Stats. 1987, ch. 577, § 1, pp. 1889-1890; emphasis added.) In concluding the time limits in section 1382 were not violated, the court in Gallenkamp noted, the "statutory time begins to run upon the filing of remittitur in the trial court. Until the remittitur is filed, section 1382 imposes no exact time limits. Thus, by its terms, . . . section 1382 was not violated here when the clerk belatedly filed remittitur." (221 Cal. App. 3d at pp. 15-16.)
The relevant statutory phrase in section 1382 as it read in Gallenkamp, "after the remittitur is filed in the trial court," is equivalent to the statutory phrase in section 1382 as it reads currently, "after the filing of the remittitur in the trial court[.]" ( § 1382, subd. (a)(2).) Under both versions of section 1382, the statutory time begins to run from the filing of the remittitur "in the trial court." Because the trial court proceedings commenced on June 19, 2001, the 60th day following the filing of the remittitur in the trial court on April 20, 2001, the proceedings were timely.
Defendants citations to civil cases for the proposition the jurisdiction of the trial court revests upon the issuance of the remittitur, because the appellate courts jurisdiction is terminated thereby, are inapposite. (See Bellows v. Aliquot Associates, Inc. (1994) 25 Cal.App.4th 426, 432-433; Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 774, fn. 5; Fischer v. Lukens (1919) 41 Cal.App. 358, 182 P. 967.) These cases do not involve the interpretation and application of section 1382, the operation of which is triggered by the filing of the remittitur in the trial court, not by the termination of appellate court jurisdiction.
As the Gallenkamp court explained, "the essence of remittitur is the returning or revesting of jurisdiction in an inferior court by a reviewing court. . . . Transmission of the remittitur — the actual `sending — . . . appears to be distinct from the issuance of the remittitur." (Gallenkamp, supra, 221 Cal. App. 3d at p. 10.) To encourage prompt transmission of the remittitur, rule 26(b) directs the clerk of the Court of Appeal to "issue a remittitur immediately after the Supreme Court denies review, or the period for granting review expires, or the court dismisses review under rule 29.3(b) . . . ." (Emphasis added; see also former rule 25(a).)
Nevertheless, the fact section 1382 allows for dead time after the remittitur has been issued by the clerk of the Court of Appeal and before it is filed by the clerk of the superior court, "does not allow us to create our own event from which we compute time. The statute directs us to mark time from the filing of the remittitur in the trial court, not from when the remittitur should have been filed. Thus, the lateness of the remittitur postpones the time when the statutory period begins." (Gallenkamp, supra, 221 Cal. App. 3d at p. 16.)
Because there is no ambiguity in the statutory language, we find the proceedings in the trial court following the filing of the remittitur by the clerk of the superior court were timely within the meaning of section 1382.
III
The Reconstruction Proceedings
Defendant contends there is no authority to reconstruct a sealed exhibit which was never disclosed to counsel and the reconstruction proceedings violated her rights under the Fourth, Sixth, and Fourteenth Amendments. Respondent disagrees and also argues this claim is barred by the law of the case doctrine and general principles of waiver.
Prior to cross-examination of the Peoples witness, the court stated that in its discussions with counsel about this hearing, "both counsel inquired as to how they might cross-examine this witness on the authenticity of this document without being able to see the document, and this court set the parameters for this discussion that would involve the reliability of reconstruction rather than the content of the document itself . . . ." At that time, defense counsel advised the court that "it is very difficult for the defense to cross-examine an individual as to his recollection of the document without me having a copy of the document. . . . Without having that document, Im precluded from effective cross-examination, at least to that portion." We find this objection sufficient to preserve defendants claims on appeal.
We reject both parties claims. We conclude the proceedings to reconstruct the affidavit in support of the search warrant and the attached sealed exhibit were authorized and did not deny defendant any of her asserted constitutional rights under the circumstances present in this case.
A. The Factual Background
In defendants first appeal, she sought review of the superior courts denial of her motion to suppress the evidence and attempted to augment the record on appeal to include the affidavit and sealed exhibit in support of the search warrant. However, the superior court clerk was unable to locate the affidavit and attached sealed exhibit and they were therefore not made a part of the augmented record. We reversed the judgment of conviction and remanded the case to the trial court "with directions to set aside its order denying defendants motions to suppress evidence (Pen. Code, § 1538.5) and to dismiss the actions unless the People produce competent evidence of the search warrant affidavit and exhibit attached to the affidavit such that the trial court can reliably reconstruct the record."
Pursuant to our directions, a hearing was held to determine whether the trial court could reliably reconstruct the sealed portion of the search warrant affidavit. The People called Deputy Brian Whigan of the Placer County Sheriffs Department.
Deputy Whigan was assigned to the Narcotic Task Force of Placer County in December 1997. He testified that on or about December 19, 1997, he prepared a search warrant for defendants person and for her residence at 5524 Brome Court, in Orangevale. The warrant was supported by an affidavit which included an attached exhibit (Exhibit A) referred to as the "Hobbs portion," and a request for an order sealing Exhibit A. Judge Ransom signed the warrant and the order to seal the exhibit. The warrant was served at defendants residence on or about December 23, 1997, and led to her arrest.
Deputy Whigan described his standard procedure for preparing a search warrant with a sealed portion, which he followed when he prepared and obtained the search warrant in this case. Whigan drafted the search warrant, the affidavit and Exhibit A on a Placer County Narcotic Task Force computer and took the documents to Judge Ransom to be signed and then filed the signed search warrant in Sacramento County. At his request, the clerks office provided him with a copy of the signed search warrant. Additionally, at the same time Judge Ransom signed the search warrant, Whigan placed a notation on a copy of the sealed exhibit, which stated it was "signed by Ransom." He then placed a copy of the signed search warrant and the copy of the notated sealed exhibit in a file which he kept in his locker at the Placer County Sheriffs Department.
The copy of the signed search warrant and the public and sealed portions of the affidavit remained in Deputy Whigans locker until he reviewed them in preparation for the preliminary hearing and then again most recently at the request of the District Attorney, in preparation for the reconstruction hearing. At the later time, Whigan went to his locker and obtained his copy of the original search warrant, along with the supporting affidavit, including the sealed exhibit. He reviewed the documents and concluded they are consistent with and complete copies of the original documents, which he drafted in 1997 and were signed by Judge Ransom. He provided the court with his original notated file copy of the documents.
The trial court examined the proffered affidavit and sealed exhibit (Courts Exhibit No. 1) solely to determine whether it bore Whigans personal notation. Having done so, the court found Exhibit A is the "Hobbs portion" of the search warrant for the Russell residence. The court further found "without reference to the content of the Hobbs portion, this court may reliably determine that this is the Hobbs[] portion of the search warrant for the Russell residence."
B. Law of the Case
Respondent claims defendants contention is barred by the law of the case. We disagree. The doctrine of the law of the case provides that "when, in deciding an appeal, an appellate court `states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . ., and this, although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular." (Kowis v. Howard (1992) 3 Cal.4th 888, 893, 838 P.2d 250, quoting Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049; People v. Shuey (1975) 13 Cal.3d 835, 841, 120 Cal. Rptr. 83, 533 P.2d 211, fn. omitted.) The doctrine applies equally to criminal and civil matters. (People v. Shuey, supra.)
The doctrine furthers the interests of judicial economy. (People v. Stanley (1995) 10 Cal.4th 764, 786, 897 P.2d 481.) "Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding." (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435, 212 Cal. Rptr. 466, 696 P.2d 1308; People v. Stanley, supra.)
The doctrine is inapplicable to the present case because in deciding defendants first appeal, we did not reach the question whether reconstruction of the sealed portion of the affidavit violated defendants constitutional rights. Indeed the opinion makes no mention of this issue. Nor did we impliedly decide the question. Until the reconstruction hearing was held, the circumstances under which the affidavit and its sealed portion were reconstructed were unknown and therefore any determination as to the reliability and constitutionality of the reconstruction procedure would have been based upon pure conjecture.
C. Prejudicial Delay
Defendant contends there has been excessive and prejudicial delay in the reconstruction process, and therefore under principles of due process, equitable estoppel, and laches, the action must be dismissed. Respondent contends that because defendant cannot establish prejudice, her claims are without merit. We agree with respondent.
The doctrine of laches is an equitable claim that may only be asserted in a suit in equity. (People v. Harvest (2000) 84 Cal.App.4th 641, 652; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 14, p. 691.) Thus, it may not be asserted in a criminal case. (People v. Koontz (2002) 27 Cal.4th 1041, 1087-1088.)
1. Due Process
Federal and state "cases have recognized that excessive delay in the appellate process may violate a defendants due process rights. `When a state provides a right to appeal, it must meet the requirements of due process and equal protection . . . Due process can be denied by any substantial retardation of the appellate process . . . . [Citation.] On the other hand, `not every delay in the appeal of a case, even an inordinate one, violates due process. [Citation.] Such claims are tested in the federal courts by applying four factors set forth in Barker v. Wingo (1972) 407 U.S. 514, 530-532 [33 L. Ed. 2d 101, 116-117, 92 S. Ct. 2182, 2192-2193], for evaluating the right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the degree to which the defendant asserted his or her right; and (4) the degree of prejudice to the defendant. All four factors are to be considered together in light of the circumstances of the case, as part of a `difficult and sensitive balancing process. (Id. at p. 533 [33 L. Ed. 2d at p. 118; see also Coe v. Thurman (9th Cir. 1990) 922 F.2d 528, 832.)" (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1341.)
The fourth prong of the federal test, a finding of prejudice, requires inquiry into three additional factors: "(1) the oppressiveness of incarceration pending appeal; (2) the anxiety and concern of the defendant awaiting the outcome of the appeal; and (3) impairment of the grounds for appeal or of the viability of the defense upon retrial." (In re Christopher S, supra, 10 Cal.App.4th at p. 1341.)
In In re Christopher S., supra, the court rejected a claim of excessive delay under the due process clause where "the delay was both significant in length — nearly 16 months — and caused entirely by the neglect of a state official to perform its legal duty," but there was no showing of prejudice because the conviction was proper. (10 Cal.App.4th at pp. 1341-1342.) The court concluded that confinement cannot be regarded as oppressive where the underlying contention on appeal is without merit (see also Coe v. Thurman, supra, 922 F.2d at p. 532); the defendant failed to assert any particular anxiety suffered here that would distinguish his case from that of any other criminal defendant awaiting the outcome of an appeal; and because the sole ground on appeal does not result in a need for rehearing, the delay cannot be said to have compromised the appellants ability to refresh the witnesses memories. (10 Cal.App.4th at p. 1342.)
Here, while the delay between the filing of the notice of appeal and the date defendant filed her opening brief in the present appeal - three and one/half years - is significant, and the cause for the delay is attributable solely to the neglect of state and local officials to timely preserve and/or reconstruct the record during the first appeal, defendant is unable to establish prejudice at this time.
As we discuss in part IV, we shall remand the matter for an in camera hearing on defendants motion to traverse the warrant under Franks v. Delaware (1978) 438 U.S. 154 [57 L. Ed. 2d 667, 98 S. Ct. 2674] (Franks), because the trial court failed to conduct an adequate in camera hearing in accordance with the procedures outlined in Hobbs, supra, 7 Cal.4th 948. Nevertheless, until that hearing is held, we do not know whether the factual question to be determined in defendants subfacial attack of the search warrant will turn on the fading memories of the affiant and informant or can be determined from police records which are unaffected by the passage of time. (See post, Part IV C.) Moreover, because we are not reversing defendants conviction, it cannot be said her confinement is overly oppressive, nor has she established that she has suffered any more anxiety than any other defendant awaiting the results of her appeal. Accordingly, defendant has failed to establish that a due process violation has occurred.
2. Equitable Estoppel
Likewise, the doctrine of equitable estoppel affords no relief to defendant. That doctrine has been applied in criminal cases (People v. Allen (1999) 76 Cal.App.4th 999, 1004; In re Monigold (1988) 205 Cal. App. 3d 1224, 1228, 253 Cal. Rptr. 120) and requires the presence of four elements, including the element of injury or prejudice. Defendant contends she is prejudiced because she was denied the prompt resolution of her appeal. We fail to see how the mere passage of time, without more, results in injury. For the reasons discussed in connection with defendants due process claim, we find she has suffered no remediable injury.
Equitable estoppel requires proof of the following four elements: (1) the party estopped must be apprised of the facts; (2) the party estopped must intend that his or her conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) the other party must rely upon the conduct to his injury. (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal. Rptr. 661, 431 P.2d 245.)
3. Res Judicata
Defendant also claims the doctrine of res judicata bars reconstruction of the record because respondent had the opportunity to litigate the reconstruction of the record on appeal when this court ordered the Sacramento County Superior Court clerk to reconstruct the record in case no. C031409. According to defendant, since respondent failed to meaningfully and diligently assist the clerk at that time, respondent should not have been given a second opportunity to reconstruct the affidavit. Respondent contends the issue whether it failed to meaningfully and diligently assist the superior court clerk in reconstructing the record was not litigated and decided in the prior appeal. We find the doctrine is inapplicable to a direct challenge on appeal.
The doctrine of res judicata, or "claim preclusion," gives preclusive effect to a former final judgment on the merits and bars relitigation of the same cause of action in a subsequent suit between the same parties or parties in privity with them. (Mycogen Corporation v. Monsanto Co . (2002) 28 Cal.4th 888, 896 (Mycogen); 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 280, p. 820.) Under the doctrine, "if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action." (Mycogen, supra, 28 Cal.4th at pp. 896-897.)
The related doctrine of collateral estoppel, or "issue preclusion," bars relitigation of issues argued and decided in prior proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, 272 Cal. Rptr. 767, 795 P.2d 1223; Mycogen, supra, 28 Cal.4th at p. 896; 7 Witkin, supra, Judgment, § 281, p. 821.)
By its very nature, these two doctrines do not prevent a timely direct attack by appeal. They only apply where the judgment is final and safe from direct attack, and is collaterally attacked in a subsequent proceeding. (7 Witkin, Judgment, supra, § 286, p. 828.) Moreover, the doctrine only protects a judgment on the merits. It does not protect a judgment on procedural grounds. (Ibid.)
Defendant asserts the doctrine of res judicata on direct appeal as a means of gaining reversal of her conviction based solely on procedural grounds, namely the failure to preserve an adequate record on appeal. The doctrine is therefore inapplicable because (1) the judgment is not yet final, (2) the legality of the reconstruction proceeding is a procedural question not going to the merits of the judgment, and (3) an appeal from the judgment does not constitute a new action on the same cause of action (res judicata) or on a different cause of action (collateral estoppel). Accordingly, the doctrine is inapplicable.
D. Legality of the Reconstruction Procedure
Defendant argues there is no authority allowing a sealed exhibit to be reconstructed ex parte where it was never disclosed to counsel, and, barring counsel from examining Deputy Whigan on the contents of the sealed portion of the affidavit violated her constitutional rights to be present, to be represented by counsel, to be heard, to confront the witnesses against her, and to a public trial. We disagree.
Lost exhibits may be reconstructed in many instances. (People v. Osband (1996) 13 Cal.4th 622, 661-663, 919 P.2d 640; People v. Coley (1997) 52 Cal.App.4th 964, 970.) Reconstruction of lost exhibits "is essentially the same as preparing a settled statement for unreported portions of trial proceedings . . . ." (People v. Coley, supra, 52 Cal.App.4th at p. 969; see rules 4(g)(1) and 7.)
In cases where loss or destruction of a portion of the record was held to prevent meaningful appellate review, no adequate substitute was available under the particular circumstances. (In re Roderick S. (1981) 125 Cal. App. 3d 48, 177 Cal. Rptr. 800 [unauthorized destruction of critical evidence, the deadly weapon used, and no substitute possible to enable appellate review]; People v. Jones (1981) 125 Cal. App. 3d 298, 178 Cal. Rptr. 44 [irretrievable loss of reporters notes of entire trial and no substitute possible]; People v. Apalatequi (1978) 82 Cal. App. 3d 970, 147 Cal. Rptr. 473 [irretrievable loss of reporters notes of argument and no substitute available under circumstances to enable review of claimed prosecutorial misconduct].)
In People v. Barnard (1982) 138 Cal. App. 3d 400, 407-409, 188 Cal. Rptr. 176 (Barnard), the trial court examined, in camera, a confidential law enforcement file and sustained a prosecution claim the file was privileged. However, instead of sealing the file and making it a part of the record, the trial court erroneously returned it to the agency. When the privilege issue was raised on appeal, the file was transmitted to the appellate court with a certification by the trial court that it accurately represented the file which it had reviewed. In considering the defendants claim this procedure violated his due process rights, the court applied the rule "that reversal is indicated only where critical evidence or a substantial part of a transcript is irretrievably lost or destroyed, and there is no alternative way to provide an adequate record so that the appellate court may pass upon the question sought to be raised." (Id. at p. 408, fn. omitted.)
The court in Barnard found the procedure did not deny due process or constitute reversible error, reasoning "the ultimate issue sought to be raised is whether the trial court abused its discretion in ruling the DEA file should not be disclosed to the defendant. In order to review this ruling, we must have the file before us. The certification procedure employed in the present case was designed to accomplish this, as is the preparation of the settled statement where the reporters notes are lost or destroyed. Since the trial court has certified the file before us as identical to the file ruled on originally, and since we must presume the courts ruling is correct, we hold the errors below harmless beyond a reasonable doubt. . . ." (138 Cal. App. 3d at pp. 408-409; see also People v. Fortune (1988) 197 Cal. App. 3d 941, 946-952, 243 Cal. Rptr. 189 [oral affidavit reconstructed from affiants field notes used to dictate the original affidavit].)
We review the trial "courts findings regarding the reconstruction of the missing exhibits, which are essentially factual, on a deferential substantial evidence standard. [Citation.] We then independently determine whether the record, as reconstructed and settled by the trial court, is adequate to allow the appeal to proceed meaningfully." (People v. Osband, supra, 13 Cal.4th at p. 662.)
Applying these principles, we find the trial court properly reconstructed the sealed portion of the search warrant affidavit. The ultimate issue to be decided on appeal is whether the affidavit and accompanying sealed exhibit are sufficient to establish probable cause. To conduct this review, we must examine an exact copy of the affidavit and sealed exhibit considered by Judge Ransom before he signed the search warrant for defendants residence. Deputy Whigan testified that as part of the procedure he followed when he obtained the search warrant, he made a notation on a duplicate copy of the sealed exhibit, which indicated that Judge Ransom signed the warrant. Whigan placed that copy in his locked file in the Placer County Narcotic Task Force office where it remained until he brought it to the trial court for these proceedings. The trial court examined that copy and found it to be the exact copy of the original affidavit and sealed exhibit in support of the search warrant for the Russell residence.
In sum, the evidence clearly established that Deputy Whigan retained an exact duplicate of the original affidavit and sealed exhibit considered by Judge Ransom when he signed the search warrant; a duplicate that was made simultaneously with the original. It is this duplicate that constitutes the reconstructed sealed exhibit. Thus, the circumstances establishing the reliability of the reconstructed exhibit involve the procedures followed to create, identify, and maintain it rather than the contents of the exhibit. Whigans memory of the affidavits contents was therefore of minor significance in establishing the reliability of the proffered copy. Even if a draft of the affidavit remained in Whigans computer and was subject to alteration, it had no bearing on the courts determination. We therefore conclude there is substantial evidence to support the trial courts finding that both the public and sealed portion of the affidavit were reliably reconstructed.
Whigan testified he does not normally leave a confidential Hobbs portion probable cause statement on the computer once he has completed drafting the documents and secured the search warrant. While he might have left that part of the search warrant on the computer in this case, it would have been a mistake. Moreover, if the Hobbs portion given to the court had been generated recently from the computer in preparation for the reconstruction hearing, it would not bear his personal notation.
Nor did this procedure violate defendants constitutional rights. As noted, the court in Barnard, supra, 138 Cal. App. 3d at pages 408 through 409 found the reconstruction procedure used there did not violate the defendants due process rights. Because the trial court found the reconstructed exhibit was an identical copy of the original sealed exhibit made simultaneously with the original exhibit, defendants due process claim fails.
We also reject defendants claim that her right of confrontation was violated. That right is basically a trial right (Barber v. Page (1968) 390 U.S. 719, 725 [20 L. Ed. 2d 255, 88 S. Ct. 1318; see also California v. Green (1970) 399 U.S. 149, 157 [26 L. Ed. 2d 489, 90 S. Ct. 1930]), which does not apply to the same extent at pretrial suppression hearings as it does at trial. (United States v. Matlock (1974) 415 U.S. 164, 175 [39 L. Ed. 2d 242, 252, 94 S. Ct. 988]; McCray v. Illinois (1967) 386 U.S. 300, 314 [18 L. Ed. 2d 62, 72, 87 S. Ct. 1056].) The court may rely on hearsay evidence at a suppression hearing, even though that evidence would not be admissible at trial. (United States v. Matlock, supra, 415 U.S. at pp. 172-174 [39 L. Ed. 2d at pp. 250-251]; Brinegar v. United States (1949) 338 U.S. 160, 172-174 [93 L. Ed. 1879, 1888-1889, 69 S. Ct. 1302].) Thus, the right of confrontation does not require disclosure of the informants identity or the right to cross-examine the affiant regarding the confidential informant at a suppression hearing. (McCray v. Illinois, supra, 386 U.S. at p. 313-314 .)
The purpose of the reconstruction hearing was to reconstruct both the public and sealed portion of the affidavit for purposes of reviewing the trial courts order denying defendants motion to quash and traverse the search warrant and suppress the seized evidence. Defendants rights at this hearing are certainly no greater than they would be at the suppression hearing itself. (See Hobbs, supra, 7 Cal.4th at pp. 971-974.) Moreover, the limitations placed on defendant at the reconstruction proceedings below were far less restrictive than those imposed at a suppression hearing conducted in accordance with the procedures approved in Hobbs.
Neither defendant, counsel, nor the public were excluded from the reconstruction proceeding. The proceeding was not held in camera and defendant was represented by counsel at all times throughout the proceeding. While counsel was precluded from examining the sealed exhibit, he had the opportunity to cross-examine Deputy Whigan on all matters relevant to the factual question before the court, i.e., the procedures he used to make both the original affidavit and sealed exhibit and the copy of those documents that he notated, placed in his file, and produced to the court as the reconstructed sealed exhibit, the circumstances under which he kept the sealed exhibit and retrieved it, and his credibility and ability to recollect those procedures.
The exclusion of the public from the entire suppression hearing violates the right to a public trial. (Waller v. Georgia (1984) 467 U.S. 39, 48 [81 L. Ed. 2d 31, 39, 104 S. Ct. 2210].)
Therefore, barring counsel from cross-examining Whigan on the content of the affidavit did not prejudice defendant because the affidavit was reconstructed by looking to the circumstances of its creation and its identifying marker, not to its content. As to those criteria, counsel was not in any way disadvantaged or limited in his scope of cross-examination. Accordingly, we find the affidavit was reliably reconstructed.
IV
The 1998 Suppression Hearing
Defendant contends the trial court erred because it failed to unseal Exhibit A and disclose the identity of the confidential informant and failed to follow the procedures mandated by Hobbs, supra, 7 Cal.4th 948, including conducting an in camera hearing to test the veracity of the search warrant affidavit. Respondent contends some of these claims have been waived for failure to raise them below and that all are without merit.
We shall conclude the trial court failed to conduct an adequate in camera hearing and remand the matter back to the trial court for further proceedings consistent with Hobbs. Because defendant raises constitutional challenges to the very nature of the hearing itself, in the interests of judicial economy, we address those claims now for the benefit of the trial court. Nevertheless, as we shall explain, because those claims were considered and rejected by the court in Hobbs, we must likewise reject them.
A. Factual Background
The public portion of the affidavit states that Deputy Whigan met with a confidential reliable informant (CRI) within the last seven days, who told Whigan that "Joyce" is selling methamphetamine at 5524 Brome Court, Orangevale. The affidavit refers the magistrate to the sealed portion of the affidavit, marked Exhibit "A" for further details and facts establishing probable cause. The affidavit further states that Whigan went to the Brome Court address and observed a blue Cadillac, parked in the driveway, which Whigan then determined from DMV records, was registered to Frank and Joyce Anderson at the Brome Court address. Whigan also determined from law enforcement records that defendant was cited for a Vehicle Code violation in February 1997 while driving the Cadillac. DMV records also established that defendant had resided at the Brome Court address since February 1994.
Defendant filed a motion to traverse and quash the search warrant and suppress evidence seized pursuant to the warrant or in the alternative, to disclose the CRI and unseal Exhibit A. The motion was made on the grounds the affidavit failed to establish probable cause, included material omissions and a misstatement of fact, and the affiant failed to verify the CRIs information.
At the suppression hearing, the trial court found, and the prosecution conceded, that because there is a CRI, the initial finding necessary for an in camera examination of the CRI and the sealed exhibit were met. The court then advised that it had reviewed and considered the entire affidavit, including the sealed exhibit. The court denied the motion to quash and traverse the warrant and suppress the evidence, finding the omissions were not material, the misstatement was not willfully false or made in reckless disregard of the truth, nor was it a material fact affecting the probable cause determination. The court further found, when considering the sealed portion of the affidavit, that there was sufficient probable cause. Last, the court found on the motion to traverse, there was no information in the sealed exhibit that would have made a difference in the finding of probable cause. The court denied the motion to disclose the CRI, finding that nondisclosure would not deprive defendant of a fair trial.
B. Constitutional Claims
Defendant claims the courts failure to unseal Exhibit A and disclose the identity of the CRI violated her Fourth, Sixth, and Fourteenth Amendment rights.
Respondent first contends defendant waived these claims by failing to raise them below. Because these claims are questions of constitutional law, and to avoid defendants claim of ineffective assistance of counsel, we address them now. (People v. Saunders (1993) 5 Cal.4th 580, 590, 853 P.2d 1093 [no constitutional right may be forfeited in a criminal case by failing to make a timely assertion of the right before a tribunal having jurisdiction to determine it].)
The claims are controlled by Hobbs, supra, 7 Cal.4th 948. There the issue was "whether a major portion or all of a search warrant affidavit may validly be sealed in order to protect the identity of a confidential informant, and, if so, what procedures must be followed in order to preserve the defendants right to challenge the warrants legality." (Id. at p. 955.) The court held that "the informants privilege (§ 1041), the long-standing rule extending coverage of that privilege to information furnished by the informant which, if disclosed, might reveal his or her identity, and the codified rule that disclosure of an informants identity is not required to establish the legality of a search pursuant to a warrant valid on its face ( § 1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege and protect the identity of a confidential informant. Section 915, subdivision (b), expressly authorizes lower courts to utilize an in camera review and discovery procedure to effectuate implementation of the privilege." (Id. at p. 971, orig. emphasis.)
In so holding, the court considered and balanced the defendants Fourth, Sixth, and Fourteenth Amendment rights, recognizing that the issue tendered by the parties "reflects the inherent tension between the public need to protect the identities of confidential informants, and a criminal defendants right of reasonable access to information upon which to base a challenge to the legality of a search warrant." (7 Cal.4th at p. 957.) On one hand, "the sealing of the majority or entirety of the search warrant affidavit ""leaves the defendant without an adversary before the court who can not only ascertain that the appropriate challenges are considered but also that the defense argument is vigorously and effectively pursued."" (Id . at p. 964, quoting People v. Seibel (1990) 219 Cal. App. 3d 1279, 1292, 269 Cal. Rptr. 313.) On the other hand, law enforcement personnel have a statutory privilege to refuse to disclose, and to prevent another from disclosing, the identity of a person who has given information pertinent to a criminal investigation if such disclosure is against the public interest. (Evid. Code, § 1041, subd. (a).) Nondisclosure furthers the strong public interest of protecting the CRI and his or her family from harm while encouraging people to report criminal activity. (7 Cal.4th at p. 958; see also McCray v. Illinois, supra, 386 U.S. at pp. 308-309 .) The common law rules and codified privileges and procedures are designed to seek an accommodation of these competing rights. (Hobbs, supra, at pp. 964-966.)
The court relied heavily on the New York Court of Appeals decision in People v. Castillo (1992) 80 N.Y.2d 578 [607 N.E.2d 1050, 1054, 592 N.Y.S.2d 945] (Castillo), where the New York court rejected the defendants claim that " a suppression procedure conducted without his participation violated his constitutional right to due process of law and the effective assistance of counsel." (Hobbs, supra, 7 Cal.4th at p. 968, quoting Castillo at 607 N.E.2d at pp. 1051-1052.) The court found Castillo "particularly instructive on the nature of the balance that must be struck when the People seek to assert the informants privilege and extend its coverage to the contents of a statement or information furnished by the informant." (Id. at p. 967, orig. emphasis.) "New York States high court explained that whether the defendant had an absolute right to participate in the pretrial suppression hearing `depends upon a sensitive balancing of a defendants right to participate in the defense and societys need to encourage citizens to participate in law enforcement by granting them anonymity when necessary for their protection. [Citations.] The Castillo court reasoned: `Analysis starts by focusing on the nature of the proceeding for there is a fundamental difference between a trial to adjudicate guilt or innocence and a pretrial hearing to suppress evidence. The due process requirements for a hearing may be less elaborate and demanding than those at the trial proper. [Citations.] This is so because, as the [United States] Supreme Court has observed, at a pretrial hearing, "we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs societys need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel [law] enforcement officers to respect the constitutional security of all of us under the Fourth Amendment . . . . If the motion to suppress is denied, defendant will still be judged upon the untarnished truth." [Citations.] (Castillo, supra, 607 N.E.2d at p. 1052.)" (Hobbs, supra, 7 Cal.4th at p. 968.)
In sum, the court in Hobbs found the in camera hearing procedures provided in Evidence Code section 915, subdivision (b) provide adequate safeguards of a defendants rights under the Fourth Amendment, the Sixth Amendment right to counsel, and the due process clause of the Fourteenth Amendment. Under principles of stare decisis, we cannot disregard the Supreme Courts explicit holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Defendant also contends the in camera hearing violated her Sixth Amendment rights of confrontation and to a public trial, two rights not considered in Hobbs. In Part III, we rejected defendants claim that the right of confrontation violated the procedures used at the reconstruction hearing. As noted, the confrontation right is basically a trial right. (Barber v. Page, supra , 390 U.S. at p. 725 .) Because it does not apply to the same extent at a suppression hearing (United States v. Matlock, supra, 415 U.S. at p. 175 ), failure to disclose the identity of the informant and to restrict the right to cross-examine the affiant about the informant does not run afoul of the right of confrontation. (McCray v. Illinois, supra, 386 U.S. at p. 313-314 .)
Nor does Waller v. Georgia, supra, 467 U.S. 39 , upon which defendant relies, support her claim that her right to a public trial was violated. In Waller the United States Supreme Court held that without sufficient justification, a suppression hearing cannot be closed to the public over the defendants objection. However, as noted by the court, "the right to an open trial may give way in certain cases to other rights or interests, such as . . . the governments interest in inhibiting disclosure of sensitive information." (Id . at p. 45.)
Here, unlike in Waller, the hearing was not completely closed to the public, and to the extent it was closed, the government had a legitimate interest in preventing the disclosure of information on the sealed exhibit that would identify the CRI. Accordingly, we reject defendants constitutional claims.
C. Failure to Comply with In Camera Procedures
Finally, we consider defendants contention that the trial courts failure to comply with the in camera procedures outlined in Hobbs was an abuse of discretion which failed to protect her constitutional rights. More specifically, she contends the court failed to determine whether the affidavit was properly sealed, failed to examine Deputy Whigan, the CRI, and/or other witnesses in camera and failed to give defense counsel the opportunity to submit written questions. Defendant therefore requests that we remand the matter to the trial court to conduct the requisite examinations. Respondent contends defendant waived these claims by failing to object below and that the claims have no merit.
With the exception of the claim relating to the submission of written questions, defendants motion requesting disclosure or an in camera hearing on the affidavit and the informant was sufficient to preserve her claims on appeal. The motion did not, however, request the opportunity to submit written questions to be asked of the affiant and informant, nor were any questions proffered. Defendant has therefore waived her claim relating to written questions. (People v. Sanders, supra, 5 Cal.4th at p. 590.)
We agree with defendant and shall remand the matter for further proceedings.
The court in Hobbs, supra, 7 Cal.4th 948, instructed that to evaluate a subfacial challenge to a warrant or otherwise make an informed determination whether sufficient probable cause existed for the search, in camera procedures held pursuant to Evidence Code section 915, subdivision (b) and People v. Luttenberger (1990) 50 Cal.3d 1, at pages 20-24, 265 Cal. Rptr. 690, 784 P.2d 633, should be followed "in order to strike a fair balance between the Peoples right to assert the informants privilege and the defendants discovery rights." (Id . at p. 972.)
As outlined in Hobbs, those procedures require the trial court to first determine "whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informants confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity." (7 Cal.4th at p. 973.) However, where all or a portion of the affidavit has been sealed to protect the CRIs identity and the defendant has made a motion to traverse the warrant, "the court should treat the matter as if the defendant has made the required preliminary showing required under this courts holding in Luttenberger." (Id . at p. 972, fn. 6.)
The prosecutor may be present at the in camera hearing. Defense counsel and defendant are to be excluded, but counsel should be given an opportunity to submit written questions to be asked by the trial court of any witness called to testify. (7 Cal.4th at p. 973.) However, in sealed affidavit cases, the defendant will generally be unable to specify which materials should be reviewed by the court during the in camera proceeding. (Ibid.) "The court, therefore, 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 informants reliability." (Ibid.) Additionally, "because the defendants 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." (Ibid.)
Once the affidavit is found to have been properly sealed and the defendant has moved to traverse the warrant under Franks, supra, 438 U.S. 154 , "the court should then proceed to determine whether the defendants 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.]" (7 Cal.4th at p. 974.)
"If the trial court determines that the materials and testimony before it do not support defendants charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. . . . [P] If, on the other hand, the court determines there is a reasonable probability that defendant would prevail on the motion to traverse - i.e., a reasonable probability, based on the courts in camera examination of all the relevant materials, that the affidavit includes a false statement or statements made knowingly and intentionally, or with reckless disregard for the truth, which is material to the finding of probable cause [citation] - the district attorney must be afforded the option of consenting to disclosure of the sealed materials . . . and a further evidentiary hearing if necessary [citations], or, alternatively, suffer the entry of an adverse order on the motion to traverse." (Id . at pp. 974-975.)
In Hobbs, the magistrate who issued the warrant personally interviewed the CRI. That interview was taped and transcribed, and the suppression hearing judge, as well as the Court of Appeal and the California Supreme Court, were all able to review that interview. (7 Cal.4th at pp. 954-955, 976-977.) Similarly, in Castillo, supra, 607 N.E.2d at page 1054, the suppression judge had a record of the written application and the transcript of the informants sworn oral testimony offered in support of the application for the search warrant. As a result, "it was not necessary to develop a factual record of the basis for the search. The [suppression] court was left with the relatively uncomplicated task of deciding whether, based on the warrant application and supporting affidavit along with the informants oral testimony, the issuing Judge reasonably could have concluded that probable cause existed. [Citations.] This is precisely the type of inquiry which can be resolved accurately on an ex parte, in camera basis." (Hobbs, supra , 7 Cal.4th at p. 969.)
By contrast, the trial court below failed to determine the validity of defendants subfacial attack. Defendants motion made both a facial and subfacial attack on the warrant. As to the facial attack, she claimed the public portion failed to allege sufficient probable cause, and that it contained material omissions and a material misstatement of fact. In her subfacial attack, she requested an in camera evidentiary hearing to controvert the allegations in the affidavit.
At the hearing, the trial court found that because the case involved a CRI, the initial finding necessary to examine the CRI and the sealed portion of the affidavit had been made. The court indicated it had reviewed and considered the entire affidavit, including the sealed portion and found it supported the magistrates finding of probable cause. It then stated the alleged omissions and misstatement were not material, nor was there any indication the misstatement was willfully false or made in reckless disregard for the truth. These findings, which address the insufficiencies in the affidavit, are pertinent to defendants facial attack on the affidavit and defendant does not challenge them on appeal.
Moreover, we have reviewed the sealed portion of the affidavit and are satisfied that it supports the magistrates finding of probable cause. The question is whether from the totality of the circumstances set forth in the affidavit and the oral testimony, if any, presented to the magistrate, there is a fair probability contraband or evidence of a crime will be found at the place to be searched. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L. Ed. 2d 527, 548, 103 S. Ct. 2317].) When reviewing the magistrates determination, "the warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrates finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony." (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal. Rptr. 613, 460 P.2d 485; People v. Hobbs, supra, 7 Cal.4th at p. 975.)
Applying these standards, we conclude under the totality of the circumstances, the sealed exhibit provides sufficient facts to conclude contraband would be found in defendants residence. The CRIs statement established that defendant sold methamphetamine in her garage within the time period stated and the affiant alleged sufficient facts to establish the reliability of the CRI and his/her information.
However, regarding the defendants motion for disclosure of the sealed affidavit, the record fails to show the trial court determined whether the extent of the sealing is justified as necessary to avoid revealing the CRIs identity (Hobbs, supra , 7 Cal.4th at p. 973), and without further information provided by either the affiant or the CRI, we are unable to make this determination on the basis of the present record.
Last, regarding defendants subfacial attack on the warrant, the record fails to establish the trial court conducted a meaningful examination of any materials necessary to evaluate defendants challenge to the affiants veracity under Franks. (438 U.S. at pp. 155-156 .) Unlike in Hobbs or Castillo, Judge Ransom, the issuing magistrate in this case, did not question the informant and therefore there was no prior record for the suppression judge to examine. As a result, it was up to the suppression judge to "develop a factual record of the basis of the search." (Hobbs, supra, 7 Cal.4th at p. 969, quoting Castillo, supra, 607 N.E.2d at p. 1054.) It did not do so.
The trial court did not question the affiant, the informant, or any other witnesses in connection with the affidavit. Nor did it request any materials from the prosecutor relating to the CRI and his/her reliability. (Hobbs, supra, 7 Cal.4th at p. 973.) A finding by the trial court that there are no insufficiencies or inconsistencies on the face of the affidavit, allows for a determination of probable cause based upon a facial attack of the affidavit. However, the absence of any facial insufficiency or inconsistency does not necessarily dispose of a Franks claim. The very nature of such a claim requires an investigation into the veracity of the affiant and his or her statements, matters which do not appear on the face of the affidavit.
The facts establishing probable cause were contained primarily in the sealed exhibit and therefore the defense was completely ignorant of all critical portions of the affidavit. As noted, the court in Hobbs instructed that the procedures outlined in its decision "should be followed in order to strike a fair balance between the Peoples right to assert the informants privilege and the defendants discovery rights." (Hobbs, supra, 7 Cal.4th at p. 972.) If a criminal defendant is to be allowed a meaningful challenge to a sealed affidavit under Franks, the trial court must make a sincere ex parte determination at the in camera hearing. Where as here, no prior recorded judicial examination of the CRI has been conducted, it is incumbent upon the trial court to conduct its own "judicial investigation" and develop a factual record of the basis of the search. (Id. at pp. 969-970.) Because the trial court failed to develop the necessary record or conduct an investigation, we remand the case for an in camera hearing consistent with the requirements in Hobbs.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to set aside its order denying defendants motion to suppress evidence (Pen. Code, § 1538.5) and to conduct an in camera hearing consistent with this opinion and the requirements set forth in People v. Hobbs, supra, 7 Cal.4th 948. If, after the hearing, the court denies defendants motion to traverse the warrant, the court is directed to reinstate the judgment and permit defense counsel to file a new notice of appeal. If the court grants defendants motion, that court is directed to vacate defendants plea of no contest if she makes a timely motion to withdraw her plea. In that event, on motion of the People the original charges shall be reinstated and trial shall proceed or other appropriate disposition shall be made. If defendant does not elect to withdraw her plea of no contest, the court shall reinstate the judgment.
We concur: SCOTLAND, P. J., MORRISON, J.