Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB008031, Bryan Foster, Judge.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Bryan Foster, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Kimberly Kay Taylor.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant Sean Anderson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia, Raquel M. Gonzalez, and Emily Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
King J.
I. INTRODUCTION
Defendants and appellants, Kimberly Taylor and Sean Anderson, were charged in the same information, tried before the same jury, and convicted of various crimes. Both were found guilty of one count of child abuse likely to produce great bodily harm or death (Pen. Code, § 273a, subd (a); count 3) and one count of possession of a controlled substance, methamphetamine, while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 2).
Taylor was also found guilty of one count of possession for sale of a controlled substance, methamphetamine. (Health & Saf. Code, § 11378; count 1.) Anderson was also found guilty of two counts of possession for sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11378; counts 1 & 5), and one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 4).
The jury further found that Anderson was released from custody on bail at the time of the commission of the offenses in counts 1 and 3 (Pen. Code, § 12022.1), and that he had four prior convictions from the North Carolina Superior Court, two from 1985 and two from 1994. The trial court found that all four prior convictions constituted prior strike convictions under California law. (Pen. Code, § 667, subds. (b)-(i).)
The trial court denied Anderson’s motion for a new trial and motion to strike three of his four prior strike convictions. Anderson was sentenced to 52 years to life in prison. Taylor was sentenced to two years in prison.
Anderson’s 52-year-to-life sentence consisted of consecutive 25-year-to-life terms on counts 1 and 5, plus two years for the on-bail enhancement. Another 25-year-to-life term was imposed but stayed on count 2, and concurrent 25-year-to-life terms were imposed on counts 3 and 4.
II. DEFENDANTS’ CONTENTIONS
Taylor and Anderson raise various claims of error on this appeal. Taylor claims the trial court erroneously instructed the jury on a critical element of count 2, in which she and Anderson were charged with and convicted of possessing methamphetamine for purposes of sale while armed with a loaded, operable firearm. She also claims her abstract of judgment fails to reflect her stayed and concurrent sentences. We find these claims without merit. Taylor also joins Anderson’s contentions without additional argument. (Cal. Rules of Court, rule 8.200(a)(5).)
Anderson first asks this court to review the contents of an unsealed search warrant issued on January 5, 2006, together with the sealed and unsealed portions of an affidavit submitted in support of the warrant, and all related in camera proceedings. He asks that this court independently determine whether the trial court complied with the procedures outlined in People v. Hobbs (1994) 7 Cal.4th 948, 972 (Hobbs) in denying his motion to reveal the identity of a confidential informant who provided information to the affiant, and his separate motion to quash the warrant. We conclude that the trial court complied with the Hobbs procedures in refusing to reveal the identity of the confidential informant and in denying Anderson’s motion to quash the warrant.
Anderson next claims that his trial counsel was ineffective for failing to move to suppress evidence obtained during an earlier search of Anderson’s person, on December 17, 2005. Anderson has also filed a petition for a writ of habeas corpus asserting the same ineffectiveness claim. The People have filed an informal response to the petition, and Anderson has filed a reply to that response. We conclude that the petition states a prima facie case for relief and issue an order to show cause, returnable to the superior court, why the petition should not be granted. If warranted by the pleadings, the superior court shall conduct an evidentiary hearing on whether the December 17, 2005, search violated Anderson’s Fourth Amendment rights.
Lastly, Anderson claims the trial court abused its discretion in refusing to strike three of his four prior strike convictions for purposes of sentencing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We find no abuse of discretion. In view of Anderson’s criminal history and unwillingness to acknowledge responsibility for his crimes, the trial court properly concluded he was not a person who fell outside the scope of the “Three Strikes” law.
III. BACKGROUND
A. Overview
Anderson’s conviction in count 5 for possessing methamphetamine for sale was based on evidence that San Bernardino County Sheriff’s Deputy James Thornburg found on Anderson’s person on December 17, 2005. Anderson’s convictions in counts 1 through 4 and each of Taylor’s convictions in counts 1 through 3 were based on evidence found during the January 5, 2006, search of the residence that Taylor and Anderson shared with Taylor’s two daughters, then ages 8 and 10.
B. Anderson’s December 17, 2005, Arrest (Anderson’s Conviction in Count 5)
At trial, Deputy Thornburg testified that, around noon on December 17, 2005, he was on active patrol on a training assignment with trainee Deputy Ann Menor. The deputies were in a patrol car heading westbound in an alleyway south of State Route 62 in Twentynine Palms, when Deputy Thornburg observed a Black male driving an off-road motorcycle heading eastbound in the alleyway.
Deputy Thornburg lost sight of the motorcycle but later saw its driver walking on Split Rock Avenue in the vicinity of the alleyway. The driver, whom Deputy Thornburg identified in court as Anderson, looked at the patrol car and immediately began to run away. Deputy Thornburg chased Anderson on foot, caught him, and ordered him to lie on the ground. Deputy Thornburg handcuffed Anderson from behind and asked his name. Anderson identified himself as Jumal Andrews.
Deputy Thornburg asked Anderson whether he had any identification. Anderson said he had identification in his pocket. Deputy Thornburg searched Anderson’s pockets. He found an identification card in the name of Kelly Jumal Andrews bearing Anderson’s photo; a blue canvas pouch containing 11 individual baggies of what appeared to be methamphetamine; two baggies containing what appeared to be marijuana; and $800 in cash, including a single $100 bill and thirty-five $20 bills.
It was later confirmed that the 11 baggies weighed 7.89 grams and included a total of three grams of methamphetamine, and that one of the two baggies of what appeared to be marijuana contained 10.16 grams of marijuana. Anderson also had two cell phones. Both phones rang constantly from the time Deputy Thornburg first came in contact with Anderson until he placed the phones in the evidence locker at the police station.
While Deputy Thornburg was processing Anderson at the scene of his arrest, Taylor, who worked at a nearby AM/PM market, approached Deputy Thornburg and said she had heard about defendant’s arrest. Taylor briefly stayed at the scene, then walked away.
Anderson’s booking application, which was completed with information provided by Anderson, listed his name as Kelly Jumal Andrews, married, unemployed, with two dependents ages 8 and 10, living at 6688 Desert Queen in Twentynine Palms. Anderson also identified Taylor as an emergency contact and listed her as living at the same address. At trial, Anderson stipulated that he used the name Kelly Jumal Andrews when he was arrested and booked on December 17.
Anderson was released from custody at approximately 5:30 p.m. on December 17, after posting bail. That evening, Deputy Thornburg contacted Anderson at the Desert Queen address and returned his motorcycle helmet, because the jail did not accept bulk property. Before Deputy Thornburg caught and arrested Anderson, Anderson left the motorcycle at some apartments in the vicinity of the alleyway.
At the preliminary hearing, Deputy Thornburg testified that he stopped Anderson because he had received a report that a motorcycle, which matched the description of the motorcycle Anderson was driving, had been stolen. At the preliminary hearing and at trial, Deputy Thornburg was not asked additional questions concerning whether or why he had reason to suspect that Anderson was involved in criminal activity, whether or why he had reason to believe that Anderson was armed and dangerous, or whether he searched Anderson pursuant to a lawful arrest.
C. The January 5, 2006, Search (All Other Convictions)
At approximately 7:15 p.m. on January 5, 2006, Deputy Claudio Vela and several other officers executed a search warrant at 6688 Desert Queen, a house Anderson shared with Taylor and Taylor’s two daughters. The deputies had difficulty entering the house because a couch was propped up against the inside of the front door. When the deputies entered, Anderson was standing near the dining room with a pit bull dog. Taylor, her two daughters, and another pit bull dog were in the only bedroom of the house.
On top of the dining room table, officers found a North Carolina driver’s license in the name of Kelly Jumal Andrews, a Triton digital scale, stacks of money, four plastic baggies containing $10- to $20-retail quantities of methamphetamine, and a child’s paper that appeared to be homework. On a back porch shelf, they found a semiautomatic ammunition magazine, some photos of money, and a scanner that could pick up police, fire, and paramedic frequencies.
A container of MSM, a material commonly used to “cut” methamphetamine, was found in the kitchen. Plastic baggies and empty packaging materials of the type commonly used to separate and package narcotics were found in the living room and kitchen. Inside Taylor’s purse, officers found a North Carolina driver’s license in her name and a plastic baggie containing a small amount of methamphetamine. A jewelry box in the bedroom contained another small bag of methamphetamine and some plastic baggies.
Three loaded and operable firearms were also found inside the house. There was a nine-millimeter handgun under a fold-out bed in the living room, a few feet from where Anderson was standing. A .22-caliber magazine was found on top of the fold-out bed. A Ruger .22-caliber semiautomatic, sawed-off rifle was found propped against the living room wall, and a .22-caliber semiautomatic handgun was on a shelf in the bathroom. Additional .22-caliber and nine-millimeter rounds were found in the kitchen.
IV. DISCUSSION
A. The Jury Was Properly Instructed on Possession of Methamphetamine With a Loaded, Operable Firearm in Count 2
Taylor contends the jury was erroneously instructed on the “armed with” element of count 2, that is, possession of methamphetamine “while armed with a loaded, operable firearm.” (Health & Saf. Code, § 11370.1, subd. (a), italics added.) She specifically argues that the instructions erroneously allowed the jury to convict her in count 2 based on a determination that she constructively, rather than personally, possessed one or more of the loaded, operable firearms that were found in the house she shared with Anderson.
We find no instructional error. A defendant may be convicted of the offense based on a determination that he or she knowingly had a firearm available for his or her immediate use at some point during the time he or she possessed a controlled substance for sale. And here, the jury was so instructed.
1. The Applicable Law
Health and Safety Code section 11370.1 “created a new felony,” which requires proof not only of possession of a controlled substance, but also proof the defendant was armed with a loaded, operable firearm while in possession of the controlled substance. (People v. Pena (1999) 74 Cal.App.4th 1078, 1082.) In relevant part, the statute provides that “every person who unlawfully possesses any amount of a substance . . . containing methamphetamine . . . while armed with a loaded, operable firearm is guilty of a felony . . . .” (Health & Saf. Code, § 11370.1, subd. (a).)
Under an analogous statute, Penal Code section 12022, a defendant is “personally armed with” a firearm “during the commission” of a felony if he or she knowingly “‘has the specified weapon available for use, either offensively or defensively,’” at any point during and in furtherance of the felony. (People v. Singh (2004) 119 Cal.App.4th 905, 912; People v. Bland (1995) 10 Cal.4th 991, 1001.) The same definition of “armed with” applies to violations of Health and Safety Code section 11370.1, subdivision (a). (People v. Singh, supra, at p. 912.)
Thus, a defendant is considered “armed with” a firearm within the meaning of Health and Safety Code section 11370.1, subdivision (a) if he or she knowingly has a firearm available for use, either offensively or defensively, at any point during the time he or she possesses a controlled substance for sale. (People v. Singh, supra, 119 Cal.App.4th at p. 912; People v. Bland, supra, 10 Cal.4th at p. 1001.) Furthermore, knowledge that the specified weapon is loaded and operable is not an element of the crime. (People v. Heath (2005) 134 Cal.App.4th 490, 498.)
2. The Given Instructions
The jury instructions in count 2 correctly defined the “armed with” element of the offense. The jury was properly not instructed that a defendant had to personally possess a loaded, operable firearm. Instead, the jury was instructed that having a loaded, operable firearm “available” for immediate offensive or defensive use, or constructive possession of a firearm, while possessing methamphetamine for sale, was sufficient. (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 2303.)
In relevant part, CALCRIM No. 2303 told the jury it could find a defendant guilty of possessing methamphetamine for sale while armed with a loaded, operable firearm, if it found that, “[w]hile possessing [methamphetamine], the defendant had a loaded, operable firearm available for immediate offensive or defensive use,” and “[t]he defendant knew that he or she had the firearm available for immediate offensive or defensive use.” (CALCRIM No. 2303.)
CALCRIM No. 2303 was revised in August 2006, shortly after the trial concluded in July 2006. The August 2006 revision includes bracketed sentences that explain the meaning of having a firearm “available” for immediate use, or constructive possession. These bracketed sentences state that, “[t]wo or more people may possess something at the same time,” and “[a] person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.” (CALCRIM No. 2303 (rev. Aug. 2006).)
Taylor’s jury was not given the bracketed sentences that were first included in the August 2006 revision of CALCRIM No. 2303. The jury was, however, given the identical instructions for purposes of count 1, in which Taylor and Anderson were charged with and convicted of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) In count 1, the jury was instructed, in relevant part, that “[t]wo or more people may possess something at the same time,” and “[a] person does not have to actually hold or touch something to posses it. It is enough if the person has control over it or the right to control it, either personally or through another person.” (CALCRIM No. 2302 (rev. Jan. 2006).)
3. Analysis
Taylor argues that, “when the language of CALCRIM No. 2302 [on possession for sale] is considered with the language of CALCRIM No. 2303 [on possession for sale while armed with a loaded, operable firearm],” a reasonable juror could have incorrectly concluded that she was armed with a loaded, operable firearm in count 2, “because she had constructive control over the rifle and pistol near the dining room table even though she was physically in the bedroom.” In other words, she argues that a reasonable juror could have erroneously interpreted the instructions in count 1 as allowing her to be convicted in count 2 based on her constructive possession of the rifle or her right to control the rifle through Anderson.
We agree that, based on the instructions as a whole, a reasonable juror could have voted to convict Taylor in count 2 based on her constructive possession of the rifle near the dining room table, or her right to control that rifle through Anderson. Indeed, the instructions allowed a reasonable juror to conclude that Taylor had a right to control any one or all three of the loaded, operable firearms that were found in the house she shared with Anderson. We disagree, however, that this was an erroneous basis for finding Taylor guilty in count 2.
The instructions on constructive possession on count 1, if interpreted by any of the jurors as applying to count 2, merely constituted a further and accurate explanation of the meaning of having a firearm “available” for immediate use, or immediate constructive possession of a firearm. As indicated, identical instructions on constructive possession were added to CALCRIM No. 2303 in August 2006, shortly after trial concluded in this case in July 2006. The instructions on constructive possession of a controlled substance for sale, for purposes of count 1, apply equally to the concept of constructive possession of a loaded, operable firearm, for purposes of count 2.
Taylor also argues that the rifle found near the dining room table had to be “near her” at the time of the search to be “available for [her] immediate offensive or defensive use,” within the meaning of Health and Safety Code section 11370.1, subdivision (a). She points out that, at the time of the search, she was in the bedroom with her two daughters, and there were no firearms in the bedroom. She also relies on People v. Pena, supra, 74 Cal.App.4th at page 1084, where the court noted that “under the ordinary meaning of ‘immediate,’ an individual is in the immediate personal possession of a firearm if the weapon is nearby and quickly and directly available to him.”
It is immaterial, however, that the firearms were not “immediately available” to Taylor at the time of the search. Instead, Taylor was properly convicted in count 2 if at least one of the firearms was immediately available to her at any point during the time she possessed the methamphetamine for sale. (See People v. Bland, supra, 10 Cal.4th at p. 1001 [Pen. Code, § 12022, subd. (a)(2) enhancement applies when, at some point during the time the defendant possesses illegal drugs, he or she has an assault weapon available for his or her [immediate] use in furtherance of the drug offense].)
The evidence showed that all three firearms were immediately available to Taylor just before the search of the house. Before the search, Taylor possessed the methamphetamine for sale and was free to move about within the entire house, including the living room and back porch areas where the firearms were found. This was sufficient to satisfy the “immediate possession” requirement of Health and Safety Code section 11370.1, subdivision (a). (CALCRIM No. 2303.)
B. Taylor’s Abstract of Judgment Correctly Reflects Her Stayed and Concurrent Terms
Taylor next argues that her abstract of judgment is erroneous and the matter must be remanded to the trial court with directions to correct the abstract, because it fails to reflect that her sentence on count 2 is stayed and that her sentence on count 2 is to run concurrent to her sentence on count 3. The People argue, and we agree, that Taylor’s abstract of judgment correctly reflects her sentences, and there is therefore no need to correct the abstract.
In orally pronouncing judgment, the court declared count 3 the principal term and imposed two years on count 3. In count 3, Taylor was convicted of child abuse likely to produce great bodily harm or death. (Pen. Code, § 273a, subd. (a).) The court imposed two years on count 2, and ordered that term to run concurrent to count 3. In count 2, Taylor was convicted of possessing a controlled substance for sale while armed with a loaded, operable firearm. (Health & Saf. Code, § 11370.1, subd. (a).) Finally, the court imposed two years on count 1, and ordered that term stayed pursuant to Penal Code section 654. In count 1, Taylor was convicted of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.)
Taylor’s abstract of judgment correctly reflects that her two-year term on count 2 is to run concurrent to her two-year term on count 3, and that her two-year term on count 1 is stayed. The court’s minute order is also consistent with the court’s oral pronouncement of judgment and the abstract of judgment. It is therefore difficult to discern why Taylor complains that her abstract of judgment erroneously reflects her sentences. It does not, and there is therefore no need to correct it. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts have inherent authority to correct clerical errors in their records, including abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts].)
C. The Trial Court Complied With Hobbs in Denying Anderson’s Motions to Quash the January 5, 2006, Search Warrant and Reveal the Identity of the Confidential Informant
Anderson asks that this court review the entire January 5, 2006, search warrant and supporting affidavit, and independently determine whether the trial court complied with “all aspects” of the procedures outlined in Hobbs, supra, 7 Cal.4th 948, in denying his pretrial motions to (1) reveal the identity of a confidential informant on the grounds the informant may have been a material witness to the crimes, and (2) quash the warrant on the grounds the warrant was based on insufficient probable cause due to material misrepresentations or omissions on the part of the affiant or the informant. The latter motion constituted a subfacial challenge to the warrant. For the reasons that follow, we conclude that the trial court properly followed the procedures outlined in Hobbs in denying these motions.
1. Relevant Background
(a) The May 5 Ruling Unsealing the Warrant and Part of the Affidavit
Before the preliminary hearing, Anderson filed motions to (1) unseal the January 5, 2006, search warrant and supporting affidavit of Deputy Randy Warfield, both of which had been sealed, (2) quash and traverse the warrant and suppress evidence seized as a result of the January 5, 2006, search, and (3) reveal the identity of any confidential informant who provided information supporting the warrant. During a hearing on May 5, 2006, Judge Foster ordered the warrant and all but two paragraphs of the affidavit unsealed, and distributed copies of the unsealed warrant and partially unsealed affidavit to the defense and the prosecution.
At the May 5 hearing, Judge Foster told the parties that the sealed portions of the affidavit included the identity of a confidential informant. Judge Foster deferred ruling on the motions to disclose the identity of the informant and quash the warrant, or suppress evidence obtained during the search, pending the conclusion of the preliminary hearing. Judge Foster indicated that Judge Swift, who was expected to preside at the preliminary hearing on May 9, would rule on those motions.
Also at the May 5 hearing, defense counsel proffered a list of questions for the court to ask the affiant, Deputy Warfield, and the confidential informant. Judge Foster noted that the list of questions was untimely but took it under submission. The prosecutor acknowledged that Deputy Warfield would be present at the preliminary hearing and could be examined in camera at that time.
(b) The May 9 Ruling Denying the Subfacial Challenge to the Warrant
Judge Swift presided over the preliminary hearing on May 9. Before the preliminary hearing, counsel for Anderson complained that the entire search warrant had not been unsealed, as Judge Foster had ordered. Specifically, counsel said he had not received the return to the warrant or attachments B-1 and B-2, which appeared to be declarations in support of the request to seal the warrant. He asked that the court review attachments B-1 and B-2 in camera, and determine whether the attachments should remain sealed to protect the identity of the confidential informant. He also asked the court to rule on the motion to reveal the identity of the informant.
Judge Swift expressed concern that his ruling on Anderson’s motion to reveal the identity of the informant would conflict with Judge Foster’s prior ruling unsealing only part of the affidavit. There was some confusion concerning whether Judge Foster’s partial unsealing of the affidavit was a tentative ruling. Accordingly, the parties agreed that the court would reserve ruling on Anderson’s motion to reveal the identity of the informant together with his subfacial challenge to the warrant—that is, his allegation that the warrant was not based on probable cause due to material misrepresentations or omissions on the part of Deputy Warfield or the informant. These motions were to be ruled on after the preliminary hearing but before trial.
The parties also agreed, however, that Judge Swift would rule on Anderson’s facial challenge to the warrant, that is, his allegation that the warrant, on its face, was not supported by sufficient probable cause, and that the evidence obtained during the search should be suppressed on this ground. This part of Anderson’s motion was made on the grounds that the house described in the warrant was not described with sufficient particularity, and the officers who executed the warrant searched the wrong house. After the preliminary hearing on May 9, Judge Swift found that the house described in Deputy Warfield’s affidavit was the same house that was searched pursuant to the warrant, and denied Anderson’s facial challenge to the warrant.
(c) The June 9 and Midtrial Rulings Denying the Motion to Reveal the Identity of the Confidential Informant
On June 9, the motion to disclose the identity of the confidential informant came on for hearing before Judge Foster. This motion was made on the ground it appeared that the informant was a material witness to the crimes. Anderson’s counsel argued that the informant’s identity had to be revealed if there was any possibility his or her identity would lead to the discovery of exculpatory evidence, and this standard was met because the unsealed portion of the affidavit showed, for example, that the informant was a percipient witness to weapons being inside the house. Taylor’s counsel joined the motion, arguing that if the informant had information that Anderson, but not Taylor, possessed the weapons inside the house, then the informant’s identity had to be disclosed. The prosecution argued that the informant’s identity was not required to be disclosed unless the defense showed that the informant was a material, percipient witness to the crimes.
Judge Foster denied the motion to disclose the identity of the informant without prejudice. The court ruled that, although the informant was a percipient witness to information that established probable cause to issue the warrant, the informant was not a witness to “anything that would be relevant in time to the trial.” The court indicated it would modify its ruling in the event the evidence developed at trial showed that the informant was a percipient witness to the crimes.
During trial, one of the deputies who searched the residence, Sergeant Michael O’Brien, mentioned on direct examination that, when he first entered the residence during the search, he saw a Black male and recognized him as “the person” or “subject” they were looking for. This was an apparent reference to Anderson and an implied reference to information that had been provided by the informant. When Anderson’s counsel mentioned the matter in cross-examining Deputy O’Brien, the court directed the prosecutor and defense counsel to approach the bench.
Outside the hearing of the jury, the court admonished Anderson’s counsel that he was “opening up the door” to damaging evidence concerning the reasons the officers had for searching the house, and if he continued on that path the prosecution could “go into those things.” The court revealed that the sealed portion of the affidavit indicated there had been a drug purchase at the house prior to January 5. Taylor’s counsel argued that if the informant had information that Anderson was the seller, that would tend to exonerate Taylor and the identity of the informant should therefore be disclosed. The court disagreed, reasoning that even if the informant provided evidence showing that Anderson had a long history of selling drugs at the house, that would not exonerate Taylor. The court also noted that no evidence had thus far been presented that either Anderson or Taylor were involved in selling drugs at any time before the search. Thus, the court again refused to reveal the identity of the confidential informant.
(d) No Express Ruling on Anderson’s Subfacial Challenge to the Warrant
During the June 9 hearing before Judge Foster, no mention was made of Anderson’s subfacial challenge to the warrant—his motion to suppress evidence found during the search on the grounds that the affiant, Deputy Warfield, and the informant made material misrepresentations or omissions and for this reason the warrant was not based on sufficient probable cause. In his motion for a new trial, Anderson’s counsel complained that the court had failed to follow the procedures outlined in Hobbs in denying his subfacial challenge to the warrant, because the court did not inquire, or indicate that it had inquired, into the veracity of affiant or the confidential informant for purposes of determining whether the warrant was based on sufficient probable cause. The motion for new trial represented that in a May 10, 2006, email, the court admitted it had not made these inquiries.
2. Applicable Law and Analysis
We first address whether the court properly denied Anderson’s motion to reveal the identity of the informant. We then consider whether the court complied with the procedures outlined in Hobbs in implicitly denying Anderson’s subfacial challenge to the warrant, that is, his allegation that the warrant was not based on probable cause due to material misrepresentations or omissions on the part of Deputy Warfield or the informant.
(a) The Trial Court Properly Refused to Reveal the Informant’s Identity
All or part of a search warrant affidavit may be sealed to protect the identity of a confidential informant. (Hobbs, supra, 7 Cal.4th at p. 971; Evid. Code, §§ 1041, 1042, subd. (b).) But the identity of the informant must be disclosed if he or she is a material witness on the issue of the defendant’s guilt. (Hobbs, supra, at p. 959; People v. Navarro (2006) 138 Cal.App.4th 146, 163; Evid. Code, § 1042, subd. (d).) Neither the unsealed search warrant nor the sealed or unsealed portions of the affidavit indicate that the informant was a material witness to Anderson’s or Taylor’s guilt of the crimes charged. Nor was any such evidence developed during trial.
Indeed, the trial court correctly determined that, although the unsealed portion of the affidavit revealed that the informant was a percipient witness to weapons being inside the house, this did not mean that the informant was a material witness to the crimes or to Anderson’s or Taylor’s guilt. As the trial court indicated, the evidence of the crimes was based solely on the evidence seized during the January 5, 2006, search, and was not based on any information the informant provided prior to the search.
As the trial court also indicated during trial, the sealed portion of the affidavit revealed that the informant provided information that drugs were sold from the house on a date prior to the January 5 search. The jury never heard this evidence, however, and the trial court correctly concluded that it did not tend to exonerate either Taylor or Anderson. Instead, the evidence of both defendants’ guilt was based solely on the evidence seized during the search. Thus, the trial court properly denied Anderson’s motion to reveal the identity of the informant, both before and during trial.
(b) The Subfacial Challenge to the Warrant Was Properly Denied
When, as here, all or part of a search warrant affidavit has been sealed, a defendant cannot reasonably be expected to “initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant) . . . .” (Hobbs, supra, 7 Cal.4th at pp. 971-972, fn. omitted.) For this reason, the court in Hobbs “approved of an in camera hearing to review the contents of a sealed search warrant affidavit in order to determine whether there was a reasonable probability that the search warrant affiant made material misrepresentations when obtaining the warrant.” (People v. Navarro, supra, 138 Cal.App.4th at p. 166, italics added, citing Hobbs, supra, at pp. 971-975; Evid. Code, § 915, subd (b).)
Before the court determines whether there is a reasonable probability the search warrant affidavit is based on material misrepresentations, the court must first determine “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.)
The affidavit is presumed truthful, however, and in camera review is not required “‘absent some showing that the presumptively valid warrant affidavit is questionable in some way.’” (Hobbs, supra, 7 Cal.4th at p. 966.) “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.’” (Id. at p. 974.)
“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, including any testimony offered at the in camera hearing.” (Hobbs, supra, 7 Cal.4th at p. 974.) “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.” (Ibid.)
“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 court’s 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, in which case the motion to traverse can then proceed to decision with the benefit of this additional evidence, and a further evidentiary hearing if necessary . . . .” (Hobbs, supra, 7 Cal.4th at p. 974.)
“Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search 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. [Citations.] . . . [¶] 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, supra, 7 Cal.4th at p. 975.)
As noted, Anderson has requested that this court review the entire search warrant and affidavit, and all related in camera proceedings, and independently determine whether the trial court complied with “all aspects” of the procedures outlined in Hobbs in ruling on his motion to quash and traverse the warrant—that is, his subfacial challenge to the warrant or motion to determine whether the warrant was based on insufficient probable cause due to material misrepresentations or omissions on the part of the affiant, Deputy Warfield, or the informant.
Based on our independent review of the warrant and affidavit, we conclude that the trial court properly, though implicitly, denied Anderson’s subfacial challenge to the warrant. First, Anderson’s written motion to quash and traverse the warrant did not include any support for its general allegation that the warrant was based on material misrepresentations or omissions. Nor did Anderson orally proffer any evidence to support such allegations, at any time. For example, Anderson did not allege that the unsealed portion of the affidavit contained any inconsistencies. Nor did he proffer any evidence to contradict the statements in the unsealed portion of the affidavit, at any time. (See Hobbs, supra, 7 Cal.4th at p. 972, fn. 6 [discussing how a defendant may make preliminary showing of material misrepresentations or omissions in affidavit without knowing the identity of the informant or viewing entire affidavit].)
Moreover, there is no indication in either the warrant or the sealed and unsealed portions of the affidavit that the warrant was based on any material misrepresentations or omissions. Nor is there any reason to believe that Anderson’s proffered list of questions for the affiant and the informant would have revealed that any material misrepresentations or omissions were made. For these reasons, Anderson’s subfacial challenge to the warrant was properly denied.
We are mindful that the trial court did not conduct an in camera interview of either Deputy Warfield or the informant for the purpose of determining whether Deputy Warfield’s affidavit was based on any material misrepresentations or omissions on the part of himself or the informant. The court was not required to do so, however. Under Hobbs, the court was only required to determine whether defendant’s “general allegations of material misrepresentations or omissions [were] supported by the public and sealed portions of the . . . affidavit.” (Hobbs, supra, 7 Cal.4th at p. 974.) The court was not required to conduct a “fishing expedition,” with or without the aid of the list of questions proffered by Anderson’s counsel. (See id. at p. 972, fn. 6.)
In any event, based on the warrant, the entire affidavit, and the entire record, there is no reason to believe the trial court would have discovered that the warrant was based on any material misrepresentations or omissions. In the unsealed portion of the affidavit, Deputy Warfield stated that the informant had given information in previous law enforcement investigations that was later found to be true. Furthermore, as the trial court revealed during trial, the sealed portion of the affidavit revealed that the informant had provided information that there were weapons at the residence. In addition, the unsealed portion of the affidavit revealed that the informant had provided information that methamphetamine was being sold at the house. There is no indication in the record that any of these statements were untrue, and these statements provided probable cause to issue the warrant.
D. Anderson’s Ineffectiveness Claim
On this appeal and in his writ petition, Anderson contends his trial counsel was ineffective for failing to file a motion to suppress, on Fourth Amendment grounds, the evidence that Deputy Thornburg found on Anderson’s person during the December 17, 2005, search. The record on appeal shows that Deputy Thornburg searched Anderson’s pockets and found 11 individual baggies of methamphetamine and other indicia of narcotics sales, including $800 in cash and two constantly-ringing cell phones. This evidence supports Anderson’s conviction in count 5 for possessing methamphetamine for sale.
Anderson argues that, because no motion to suppress the December 17 evidence was ever made, there is insufficient evidence in the record on appeal to determine whether a motion to suppress the evidence on Fourth Amendment grounds would have had merit. Although Anderson concedes that Deputy Thornburg had reasonable grounds to suspect he was involved in criminal activity when Deputy Thornburg stopped him, he argues the record on appeal is insufficient to determine whether the search otherwise violated his Fourth Amendment rights.
We agree. The record on appeal, including Deputy Thornburg’s preliminary hearing testimony, trial testimony, and police report of the December 17 search leave several Fourth Amendment questions unanswered. These include whether Deputy Thornburg had reasonable grounds to believe Anderson was armed and dangerous; whether Anderson consented to the search or any part of it, and whether Deputy Thornburg’s search of Anderson was conducted pursuant to a valid arrest.
Because no motion to suppress the December 17 evidence was made, the issue whether the search violated Anderson’s Fourth Amendment rights was never explored, either at the preliminary hearing or at trial. Deputy Thornburg was the only witness who testified at the preliminary hearing and at trial concerning the events of December 17—including the events that led him to detain Anderson, search his pockets, and find the 11 individual baggies of methamphetamine and other indicia of sales. But Deputy Thornburg was not fully examined, either at the preliminary hearing or at trial, on all of the facts and circumstances concerning whether Anderson’s Fourth Amendment rights were violated when Deputy Thornburg searched Anderson’s pockets and found the methamphetamine and other indicia of sales.
Furthermore, Anderson’s writ petition includes the declaration of his trial counsel, Attorney Sasnett. Attorney Sasnett states he does not know why he did not file a motion to suppress the evidence seized from Anderson on December 17, but he believes he did not file the motion because Deputy Thornburg’s police report indicated the evidence was properly seized. But Deputy Thornburg’s preliminary hearing testimony, trial testimony, and police report do not demonstrate that the evidence was properly seized. We therefore grant the writ petition and issue an order to show cause, returnable to the superior court, why the writ petition should not be granted.
1. Applicable Law
To establish a claim of ineffective assistance of counsel, a defendant must show (1) his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) prejudice, that is, a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 104 S.Ct. 2052,80 L.Ed.2d 674]; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
When, as here, an ineffective assistance claim is predicated on counsel’s failure to bring a motion to suppress evidence on Fourth Amendment grounds, the defendant “must also prove that his Fourth Amendment claim is meritorious . . . .” (People v. Wharton (1991) 53 Cal.3d 522, 576, quoting Kimmelman v. Morrison (1986) 477 U.S. 365, 375 [106 S.Ct. 2574, 91 L.Ed.2d 305].) A contrary rule would be inconsistent with the requirement that the defendant must demonstrate a reasonable probability that, but for his counsel’s error, the result of the proceeding would have been different. (People v. Wharton, supra, at p. 576.)
When, however, “‘“the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) “A claim of ineffective assistance in such a case is more properly decided in a habeas corpus proceeding.” (Id. at pp. 266-267.) Here, the record on appeal is insufficient to show that the December 17 search violated Anderson’s Fourth Amendment rights. Thus, based solely on the record on appeal, we would reject Anderson’s ineffective assistance claim.
But Anderson has filed a petition for a writ of habeas corpus on his ineffectiveness claim. The petition and supporting declaration of Attorney Sasnett state a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
2. Analysis of Fourth Amendment Issues
A police officer who lacks probable cause to arrest may temporarily detain an individual if the officer has knowledge of specific and articulable facts which cause him to suspect that the person is involved in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889] (Terry).) The officer may also conduct a “patdown search” of the individual for weapons if the officer reasonably believes the person may be armed and dangerous. (Id. at pp. 27-29; People v. Dickey (1994) 21 Cal.App.4th 952, 956 and cases cited.)
Anderson concedes that Deputy Thornburg’s direct preliminary hearing testimony was sufficient to establish that he had reasonable grounds to stop and detain Anderson. Indeed, Deputy Thornburg testified he had received information that a motorcycle matching the description of the one Anderson was riding had been stolen, and Anderson immediately fled when he saw Deputy Thornburg’s patrol car. Still, Anderson argues, a trial court hearing a suppression motion would not necessarily have reached the same conclusion, because Deputy Thornburg’s direct testimony was not subjected to cross-examination concerning whether he had reasonable grounds to stop and detain Anderson.
We acknowledge that Anderson’s defense counsel was not allowed to examine Deputy Thornburg on this issue at the preliminary hearing or at trial, because he had not made a motion to suppress the December 17 evidence. Nevertheless, we believe the record establishes that Deputy Thornburg had reasonable grounds to stop and detain Anderson under Terry. The record indicates that Deputy Thornburg reasonably believed Anderson was riding a motorcycle that had been stolen, and Anderson’s immediate flight upon seeing Deputy Thornburg’s patrol car gave Deputy Thornburg reasonable cause to believe that Anderson was involved in stealing the motorcycle.
But even if Deputy Thornburg had reasonable grounds to stop and detain Anderson under Terry, that did not justify his act of searching through all of Anderson’s pockets for identification or other evidence. (People v. Garcia (2006) 145 Cal.App.4th 782, 784 [Terry does not justify a search for ordinary evidence, including identification].) Nor does the record indicate that Deputy Thornburg reasonably believed Anderson to be armed and dangerous, or that Deputy Thornburg was conducting a patdown search of Anderson for weapons when he found the identification card, the methamphetamine, and all of the other evidence in Anderson’s pockets. (Terry, supra, 392 U.S. at pp. 27-29.)
The record indicates only that Deputy Thornburg handcuffed Anderson, then asked him his name, then asked him whether he had any identification on his person. Anderson responded that his name was Jumal Andrews and he had an identification card in his pocket. At that point, Deputy Thornburg searched through all of Anderson’s pockets. It is unclear whether Deputy Thornburg found the identification card before or after he opened the blue pouch which contained the 11 individual baggies of methamphetamine, or before or after he found the $800 in cash, and other indicia of sales in Anderson’s pockets.
If Deputy Thornburg had probable cause to arrest Anderson before he detained him, or if Deputy Thornburg acquired probable cause to arrest Anderson while conducting a Terry search of his person for weapons, then any subsequent search of Anderson’s person for evidence was valid, and any motion to suppress that evidence would not have had merit. (Chimel v. California (1969) 395 U.S. 752, 762-763 [89 S.Ct. 2034, 23 L.Ed.2d 685]; People v. Lee (1987) 194 Cal.App.3d 975, 983-985 [officer who reliably detects contraband during Terry search can seize the item and conduct further search incident to lawful arrest]; People v. Limon (1993) 17 Cal.App.4th 524, 538 [officer’s discovery of object commonly used to store narcotics, coupled with circumstances strongly indicating narcotics sales, justified arrest and search incident to arrest for evidence].) Alternatively, Anderson may have voluntarily consented to the search of his pocket for identification (see People v. James (1977) 19 Cal.3d 99, 106-118), and Deputy Thornburg may have reasonably discovered the contraband and other evidence during that search.
These questions were not explored at the preliminary hearing or at trial, however. Nor does Deputy Thornburg’s police report of the December 17 search shed any additional light on whether any of the December 17 evidence was seized in violation of Anderson’s Fourth Amendment rights. For these reasons, it appears that an evidentiary hearing may be necessary to determine whether the December 17 search was to any extent or in any way conducted in violation of Anderson’s Fourth Amendment rights. (See People v. Duvall, supra, 9 Cal.4th at pp. 474-479 [evidentiary hearing on habeas petition unnecessary where petition, return, and traverse show the material factual issues are undisputed].)
E. Anderson’s Romero Motion Was Properly Denied
Lastly, Anderson claims that the trial court abused its discretion in denying his motion to dismiss all but one of his four prior strike convictions. (Pen. Code, § 1385; Romero, supra, 13 Cal.4th 497.) We find no abuse of discretion.
1. Relevant Background
The jury found that Anderson had four prior convictions from the North Carolina Superior Court, two from 1985 and two from 1994. The trial court found that all four convictions constituted prior strike convictions under California law. (Pen. Code, § 667, subds. (b)-(i).) The 1985 convictions occurred on the same date and were for conspiracy to commit a robbery and robbery with a dangerous weapon. The 1994 convictions were for breaking and entering an inhabited dwelling on two separate occasions.
Before sentencing, Anderson filed a motion requesting that the trial court strike his two 1985 convictions and one of his 1994 convictions. The trial court denied the request. The court acknowledged that Anderson’s two 1985 priors were based on the same set of operative facts, and that Anderson was very young, only 16 or 17 years old, at the time he committed those offenses. The court said it was inclined to strike the 1985 conviction for conspiracy to commit robbery or “merge that with . . . the robbery strike.”
The court declined, however, to strike Anderson’s 1985 conviction for conspiracy to commit robbery. The court reasoned that Anderson had three other prior strikes, and that striking his 1985 conspiracy conviction would have no effect on his sentence. The court also indicated that Anderson’s 1985 robbery conviction and his two 1994 convictions were “properly pled and properly included as part of the sentencing process,” and the court saw no reason to strike any of these other priors. In addition, the court observed that Anderson was not a person who fell outside the scope or intended purpose of the Three Strikes law.
2. Applicable Law
A trial court may dismiss one or more of a defendant’s prior strike convictions in the interests of justice. (Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) The trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
We review a trial court’s decision not to strike a prior strike for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.) We consider the same factors the trial court was required to consider in determining whether to strike a prior strike conviction. (Williams, supra, 17 Cal.4th at p. 161.) We will not find an abuse of discretion unless the trial court’s decision “is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, at p. 377.) Specifically, where the relevant factors described in Williams “manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, at p. 378.)
3. Analysis
Anderson maintains that the trial court abused its discretion in refusing to strike three of his four prior strike convictions. He argues that the court considered only his criminal record and failed to consider several other factors in his favor, including that (1) his 1985 prior strikes were very old; (2) he was only 16 years old at the time he committed the offenses in 1984; (3) sentence on one of his 1985 prior strikes would have been stayed under Penal Code section 654 had he been sentenced for the offenses under California law; (4) he currently has a serious, untreated drug problem; (5) none of his current convictions were for serious or violent felonies; and (6) his punishment, even with only one prior strike conviction, could be “extremely severe . . . a maximum of twenty-six years at eighty percent.”
Contrary to Anderson’s argument, the record indicates that the trial court properly considered all of the factors it was required to consider in determining whether to strike any of his prior convictions. Although the discussion at sentencing focused on the propriety of striking Anderson’s 1985 conviction for conspiracy to commit robbery, the court did not disregard the other factors it was required to consider in determining whether to strike both 1985 convictions and one of the two 1994 convictions. For example, the court expressly acknowledged that Anderson was very young, only 16 or 17 years old, when he committed the offenses underlying his 1985 convictions.
Prior to the hearing on Anderson’s Romero motion, the court had read and considered Anderson’s probation report. The report stated that Anderson was 38 years old at the time of sentencing; he began using methamphetamine when he was nine years old; and he was currently smoking one-quarter ounce of methamphetamine on a daily basis. The report also revealed that Anderson denied any responsibility for his actions. He denied that Taylor’s two daughters were ever in any danger from having significant quantities of methamphetamine and three loaded firearms in the house. According to the probation officer, Anderson’s “acceptance of responsibility could be stored in a thimble with enough room left over to poach an egg.”
The probation report and trial record also indicated that Anderson had failed to learn anything from his past convictions. In addition to his 1985 and 1994 convictions, he was convicted of manufacturing cocaine in 1992, and was sentenced to prison in North Carolina. He was sentenced to 10 years in prison for his 1994 convictions, and was released on parole in 2001. In 2002, he was arrested in North Carolina for vehicle theft, and was a fugitive at the time he committed his current offenses in 2005 and 2006. Thus here, the trial court did not abuse its discretion in refusing to strike any of Anderson’s prior strike convictions. Anderson was not a person who fell outside the spirit of the Three Strikes law, in whole or in part. (Williams, supra, 17 Cal.4th at p. 161.)
V. DISPOSITION
The judgments against Taylor and Anderson are affirmed. The People are ordered to show cause, returnable to the superior court, why Anderson’s petition for a writ of habeas corpus on his claim of ineffective assistance of counsel should not be granted. The superior court shall set the dates for filing the People’s return and Anderson’s traverse, if any, and shall, if warranted by the pleadings, conduct an evidentiary hearing for the purpose of determining whether the December 17, 2005, search of Anderson’s person by Deputy Thornburg in any way or to any extent violated Anderson’s Fourth Amendment rights.
We concur: McKinster Acting P.J., Richli J.