Opinion
C081597
01-31-2017
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F06946)
Following his no contest pleas, defendant Douglas Jay Tapella challenges the denial of his motion to suppress. (Pen. Code, § 1538.5, subd. (m).) Defendant asks us to conduct an independent review of the in camera proceedings of the affidavit. Defendant also challenges the constitutionality of the procedures under People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). We affirm the judgment.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
In November 2015, a magistrate signed a warrant authorizing the search of defendant's home. During the search, officers found over 20 pounds of methamphetamine, 16 pounds of marijuana, over $36,000 in cash, a .380-caliber handgun, and multiple boxes of ammunition. At the time of the search, defendant also had three prior felony convictions for possession for sale of a controlled substance.
A complaint deemed an information charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378—count one), possession of marijuana for sale (Health & Saf. Code, § 11359—count two), and possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)—count three). As to count one, the information further alleged that the weight of the substance exceeded nine kilograms (Health & Saf. Code, § 11370.4, subd. (b)(2)) and that defendant was personally armed with a firearm in committing the offense (§ 12022, subd. (c)). The information also alleged that defendant had five separate prior convictions related to controlled substances. (Health & Saf. Code, § 11370.2, subd. (c).)
Defendant filed a motion to traverse and quash the search warrant and suppress evidence and requested the trial court conduct a hearing under Hobbs. (§ 1538.5.) After conducting an in camera hearing, the trial court found the affidavit was properly sealed, there were no false or intentionally misleading statements in the affidavit, and there was sufficient probable cause to support the warrant. Accordingly, the trial court denied the motions to traverse and quash, and the motion to suppress.
Defendant pleaded no contest to all three counts and admitted the enhancement allegations. The trial court sentenced defendant to the stipulated term of 23 years four months.
DISCUSSION
I
Defendant requests this court conduct an independent review of the in camera proceedings and sealed affidavit to determine if the trial court erred in denying defendant's motion to unseal the affidavit, traverse and quash the warrant, and suppress the evidence found in the search of his home.
Under Hobbs, "[o]n a properly noticed motion by the defense seeking to quash or traverse [a] search warrant" where any portion or all of the search warrant affidavit has been sealed, "the lower court should conduct an in camera hearing . . . . It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Hobbs, supra, 7 Cal.4th at p. 972, fn. omitted.)
"If the affidavit is found to have been 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 . . . . 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, supra, 7 Cal.4th at p. 974.)
"If the trial court determines that the materials . . . 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. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 974.)
"[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], 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. [Citations.] In reviewing the magistrate's determination to issue the warrant, it is settled that 'the warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate's 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. [Citations.]' [Citation.]" (Hobbs, supra, 7 Cal.4th at p. 975.)
"If the court determines, based on its review of all the relevant materials, that the affidavit . . . furnished probable cause for issuance of the warrant . . . [citation], the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 975.) "In all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant application for possible appellate review. [Citations.]" (Ibid.) On appeal, we review for abuse of discretion. (See Hobbs, supra, at p. 976.)
Having reviewed the transcript of the in camera proceedings and the sealed and unsealed portions of the search warrant affidavit, we conclude that there was no abuse of discretion. The trial court correctly determined that the confidential portion of the affidavit was properly sealed. The trial court also correctly determined that there was nothing to suggest any material misrepresentations or omissions were made by the affiant in applying for the search warrant, and that the affidavit set forth sufficiently reliable and competent evidence to support the magistrate's finding of probable cause to issue the warrant. Accordingly, the trial court properly denied defendant's motion.
II
Defendant contends the Hobbs procedure violates his Fourth, Fifth, Sixth, and Fourteenth Amendment Rights. He also contends counsel's failure to object to the procedure was ineffective assistance of counsel.
As defendant acknowledges, trial counsel failed to object, on constitutional grounds, to the review procedure prescribed by Hobbs. On the contrary, he requested that the court conduct an in camera review and probable cause determination in conformance with Hobbs.
"[C]onstitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal." (People v. Rudd (1998) 63 Cal.App.4th 620, 628.) Even due process claims may be forfeited by the failure to assert them in a timely manner in the trial court. (See People v. Toro (1989) 47 Cal.3d 966, 975-976, overruled on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
Furthermore, the doctrine of invited error precludes a party from complaining on appeal of errors induced by his own conduct. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 389, p. 447; see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.)
Because defendant not only failed to interpose a proper objection but actually requested a Hobbs hearing, his constitutional attack upon the procedure is both forfeited and barred by the doctrine of invited error.
Moreover, defendant's argument is foreclosed by Hobbs, supra, 7 Cal.4th at pages 971 to 975, which expressly authorized the procedure followed by the trial court. Both this court and the trial court are bound by decisions of the state Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As there was no sound legal basis for objection, counsel was not ineffective for failing to object to the Hobbs procedure. (People v. Cudjo (1993) 6 Cal.4th 585, 616.) And, this court has no power to overrule Hobbs. (Auto Equity Sales, Inc. v. Superior Court, supra, at p. 455.)
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: BLEASE, Acting P. J. RENNER, J.