Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. SWF010517. William R. Bailey, Jr., Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) (count 1); possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 2); and unlawful possession of a firearm, to wit, a .22-caliber rifle (Pen. Code, § 12021, subd. (c)(1)) (count 3). The jury was unable to reach verdicts on the firearm enhancement allegation (Pen. Code, § 12022, subd. (c)) attached to counts 1 and 2, and the court declared a mistrial as to those allegations. Defendant was sentenced to the low term of three years on count 1, a concurrent midterm of two years on count 2, and a concurrent midterm of two years on count 3. Defendant requests, and the People concede, that this court must review the sealed warrant documents to determine whether the trial court erred in denying his motion to unseal the affidavit to the search warrant. We agree with the parties that this court must independently review the sealed records to determine whether the trial court’s rulings were correct. We conclude the in camera hearing was conducted in accordance with the requirements of People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) and affirm the judgment.
The firearm enhancement allegations attached to counts 1 and 2 were eventually stricken on the People’s motion.
I
FACTUAL BACKGROUND
Riverside County Sheriff’s Deputy Darren Wills, who was assigned to the Allied Riverside Cities Narcotics Enforcement Team (ARCNET), obtained a search warrant for defendant’s apartment on West Devonshire Street in Hemet. The search warrant was executed on December 28, 2004, and no one was present in the apartment. During the search of the residence, four rocks of cocaine base, nine bindles of methamphetamine, and a digital scale were found in the master bedroom. A .22-caliber rifle was also found in the master bedroom closet underneath some blankets and clothes. The rifle was not loaded, and no ammunition was found in the apartment. An expert estimated the rifle to be about 30 years old.
No cash, pay/owe sheets, cell phones, or pagers were found in the apartment. However, another scale (a swing scale), photographs, and a utility bill dated October 27, 2004, addressed to defendant at the Devonshire apartment address were found. Other items associated with defendant occupying the apartment were also located.
After the search warrant was served, Deputy Wills called defendant to inform him of what they had found in the apartment. Defendant immediately stated, “I wasn’t selling it.” Defendant was subsequently arrested and taken to the police station. After waiving his constitutional rights, defendant conceded that the drugs belonged to him but asserted that he did not intend to sell them. Defendant explained that he had purchased them to give away at a New Year’s Eve party he was throwing at his apartment.
The rocks of cocaine, without the packaging, totaled 1.5 grams, and the nine bindles of methamphetamine weighed a total of 1.23 grams without the packaging. An expert opined that the rocks of cocaine could be cut up into 20 to 30 pieces called “doves” to sell on the street. Regarding the methamphetamine, the expert explained that the methamphetamine was of a high grade, which would bring more money, and that the packaging in smaller plastic baggies was consistent with amounts typically sold for $30 each. Based on the amount and packaging of the drugs found, as well as the presence of the digital scale and the rifle, the expert believed that defendant possessed the drugs for the purpose of sale.
II
DISCUSSION
The search warrant issued in this case relied on a sealed affidavit containing information from a confidential reliable informant (CRI). Defendant moved to unseal the affidavit in conjunction with a motion to traverse and quash the search warrant. Following an in camera hearing, the trial court denied defendant’s motion to unseal the affidavit, finding that unsealing the affidavit would lead to the disclosure of the identity of the CRI and that the information contained in the sealed affidavit neither assisted the prosecution nor provided any exculpatory benefit to the defense.
Defendant requests, and the People agree, that this court review the sealed proceedings pursuant to Hobbs, supra,7 Cal.4th 948.
The California Supreme Court has set forth the procedures to be followed where, as here, due to the sealing of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required to move to traverse the warrant, or make an informed determination whether sufficient probable cause existed for the search, in preparation for a motion to quash the warrant. (Hobbs, supra, 7 Cal.4th at p. 957.) In such cases, the defense should make a properly noticed motion seeking to quash or traverse the search warrant. The court should then conduct an in camera hearing. (Id. at p. 972.)
The court must first determine whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. The court should then determine whether the extent of the sealing of the affidavit or any major portion thereof is necessary to avoid revealing the informant’s identity. (Hobbs, supra, 7 Cal.4th at p. 972.) The trial court should “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 informant’s reliability.” (Id. at p. 973.) “The prosecutor may be present at the in camera hearing; defendant and his counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. [Citation.] Defense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceeding. [¶] Because, in sealed affidavit cases such as the one before us, the defendant may be completely ignorant of all critical portions of the affidavit, the defense will generally be unable to specify what materials the court should review in camera. 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.” (Ibid.) If the court determines in camera there is no reasonable possibility that nondisclosure of confidential informant’s identity might deprive defendant of fair trial, it shall not order disclosure but simply report its finding. (People v. Luttenberger (1990) 50 Cal.3d 1, 24.)
The policy reasons underlying the need to protect the identities of confidential informants have consistently been recognized. (Hobbs, supra, 7 Cal.4th at p. 957; McCray v. Illinois (1967) 386 U.S. 300, 308-309 [87 S.Ct. 1056, 18 L.Ed.2d 62]; see also Evid. Code, § 1041.) Disclosure of an informant’s identity is typically required only where the informant is a potential material witness on the issue of guilt and not one who simply points the finger of suspicion toward a person who has violated the law and who plays no part in the criminal act with which the defendant is later charged. His identity is ordinarily not necessary to the defendant’s case, and the privilege against disclosure properly applies. (Hobbs, at p. 959.) “It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause.” (Id. at pp. 959, italics omitted.) “If a search is made pursuant to a warrant valid on its face and the only objection is that it was based on information given to a police officer by an unnamed informant, there is substantial protection against unlawful search and the necessity of applying the exclusionary rule in order to remove the incentive to engage in unlawful searches is not present.” (People v. Keener (1961) 55 Cal.2d 714, 722.)
Here the trial court properly followed the hearing procedures dictated by Hobbs, found that there were sufficient grounds to protect the identity of the informant, and exercised its discretion in denying defendant’s motion to unseal the affidavit. Having ourselves reviewed the transcript of the in camera hearing as well as the sealed affidavit, we find that the informant was not a material witness as to defendant’s guilt or innocence, and substantial evidence supports these findings by the trial court.
Defendant claims that the informant should have testified at the in camera hearing. Generally there is no requirement that the informant do so. (People v. Dimitrov (1995) 33 Cal.App.4th 18, 30; People v. Alderrou (1987) 191 Cal.App.3d 1074, 1079-1080.) However, defendant claims that an informant who is a participant or an eyewitness to the alleged offense is required to testify at the in camera hearing, and he relies principally on People v. Ruiz (1992) 9 Cal.App.4th 1485 (Ruiz).
In Ruiz, the court stated that there is no general requirement that an informant must be present or testify at an in camera hearing on a motion to disclose the informant’s identify. (Ruiz, supra, 9 Cal.App.4th at p. 1489.) However, in the case before it, the informant’s in camera testimony was essential because the defendant had established that the informant was an eyewitness to the alleged drug transaction, and the defendant had denied giving any person drugs. (Ibid.) Defendant argues that a remand for further in camera review is necessary here because the trial court’s failure to compel the CRI’s attendance was essential on the determination of the CRI’s credibility and knowledge.
The present case does not resemble the situation in Ruiz. Here, the CRI was not present when the police found the drugs in defendant’s residence. In fact, as defendant notes, the charges were established at the time of the search of defendant’s residence, and anything the CRI might have said would have been ineffective in establishing defendant’s innocence. The CRI was neither a percipient witness nor a material witness, and therefore the court did not have to hear the CRI’s testimony. Since the CRI could not provide any exculpatory evidence, the court’s refusal to disclose the CRI’s identity did not violate defendant’s due process rights.
Accordingly, we conclude that the lower court properly conducted an in camera hearing, and it was not required to hear testimony from the CRI. Our independent in camera review of the sealed affidavit establishes that the trial court properly found that the CRI’s identity should not be disclosed and that his or her identity could only be protected by sealing the entire unredacted affidavit.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., KING, J.