Opinion
F040951.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. MAGDALENA J. TORRES, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Robert K. Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Buckley, Acting P.J., Levy, J. and Cornell, J.
STATEMENT OF THE CASE
On January 18, 2002, the Tulare County District Attorney filed an information in superior court charging appellant as follows:
Count I—allowing a place for preparing or storing a controlled substance in excess of statutorily specified amounts with a prior such conviction (case No. 45253) (Health & Saf. Code, § 11366.5, subd. (c); Pen. Code, § 1203.073, subd. (b)(2)) with two prior convictions precluding probation (§ 1203, subd. (e)(4)) and a prior prison term (& sect; 667.5, subd. (b));
All further statutory references are to the Penal Code unless otherwise indicated.
Count II—possession of a controlled substance in excess of statutorily specified amounts for sale (Health & Saf. Code, § 11378; Pen. Code, § 1203.073, subd. (b)(2)) with two prior convictions precluding probation (§ 1203, subd. (e)(4)) and a prior prison term (§ 667.5, subd. (b)); and
Count III—felony child abuse (§ 273a, subd. (a)) with two prior convictions precluding probation (§ 1203, subd. (e)(4)) and a prior prison term (§ 667.5, subd. (b)).
On January 25, 2002, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On February 25, 2002, the superior court granted appellants motion to set aside count I of the information but denied appellants motion as to count III. (§ 995.)
On February 26, 2002, appellant filed motions to take judicial notice of the search warrant and affidavit leading to the charged offenses and for disclosure of the identity of a confidential informant.
On February 27, 2002, appellant filed a motion to suppress evidence on the ground the underlying affidavit failed to establish probable cause. (§ 1538.5.)
On February 28, 2002, appellant filed a motion for discovery of the items set forth on exhibit A of the search warrant to determine the reliability of the confidential informant.
On March 11, 2002, the district attorney filed written opposition to appellants various motions.
On March 15, 2002, the court conducted a contested hearing on the various motions and denied them in open court.
On April 2, 2002, appellant withdrew her not guilty plea, entered a plea of nolo contendere to count II, and admitted the truth of the related quantity allegation. Appellant also pleaded nolo contendere to misdemeanor child endangerment, a lesser included offense of that charged in count III. By pleading nolo contendere in case No. 81616, appellant admitted that she had violated the terms of her probation in case No. 45253.
On April 29, 2002, appellant filed a statement in support of a grant of probation (§§ 1170, subd. (b), 1204).
On May 3, 2002, the court denied appellant probation in case No. 81616, sentenced her to a middle term of two years in state prison on count II, and awarded one day of custody credit. The court then dismissed count III on its own motion. In prior case No. 45253, the court terminated appellants probation and sentenced her to a concurrent term of 16 months. The court awarded 270 days of custody credits, imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court also ordered appellant to register as a narcotics offender.
On June 23, 2002, appellant filed a timely notice of appeal and request for certificate of probable cause. (§ 1237.5, subd. (b); Cal. Rules of Court, rule 31(d).) On or about that same date, the court granted her request for a certificate of probable cause.
STATEMENT OF FACTS
The following facts are taken from the report and recommendation of the probation officer filed April 30, 2002:
"[Case #01-81616]
"According to reports of Visalia Police Department, on August 30, 2001, at approximately 10:33 a.m., officers arrived at the defendants residence to execute a search warrant. The officers arrived at the front door and knocked. When they did not receive a response, they forced entrance. The officers contacted the defendant in the kitchen, near a sliding glass door of the residence. A witness, Ramirez, was contacted along with her son, A.G., in a bedroom of the residence. The officer stated the defendant was seen near the fence in the back yard of the residence, and upon noticing the officers, she ran into the residence. The officer advised the defendant and Ramirez, they were being detained while a search of the residence was conducted.
"Outside the residence, near the fence where the defendant was located, was a hanging gram scale located inside a plastic case. Officers located two plastic baggies which contained methamphetamine and were inside a coffee container. The coffee container was located inside a black nylon sock which was tied to a vine along the south side of the residence. Approximately nine feet from the nylon sock an officer located another sock tied to a vine which contained plastic baggies that had methamphetamine inside them. Officers located one picture of Jesus Malverde who is known as the patron saint of drug dealers, to whom persons involved in the sales of illegal drugs often pray for protection from other drug dealers and law enforcement. In the defendants pants pocket, the officer located two $20 bills and a cellular phone. Inside a day planner/organizer, the officer located five pages containing pay/owe ledger information and telephone numbers.
"It was determined that based on the location of the methamphetamine, it was accessible to any of the defendants five children. Therefore, Child Welfare Services responded to the residence and took the defendants five children from her custody, then later placed them with the defendants sister.
"The officer contacted the defendant for a statement. The defendant denied any knowledge of the methamphetamine being at the residence and denied she had ever seen the items seized from the fence. Further, she stated she was not involved in illegal drug activity, including use and sales of methamphetamine from her residence. The defendant stated she was not located near the fence when officers arrived on scene, but was actually in the laundry room by the patio. The defendant stated she had not seen perimeter officers trying to make contact with her nor did she run to the residence to elude officers. The defendant was transported to Bob Wiley Detention Facility where she was booked. [¶]...[¶]
"Case #99-45253
"On April 6, 2000, the defendant appeared before the Court for sentencing on one felony violation of Health & Safety Code 11366.5(a)—Maintaining a Residence for Use and Sale of Methamphetamine. Among the standard terms and conditions of probation, the defendant was ordered to obey all laws.
"Based on the defendants plea of Nolo Contendere in Case 01-81616 and her failure to obey all laws, the defendant has violated her terms and conditions of probation."
DISCUSSION
I.
TRIAL COURT DID NOT DEPRIVE APPELLANT OF A FAIR TRIAL BY DENYING HER MOTION TO DISLCOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT OR CONDUCT AN IN CAMERA HEARING
Appellant contends she was entitled to disclosure of the informants identity or to have the trial court conduct an in camera hearing to determine whether disclosure was required.
On August 23, 2001, the Tulare County Superior Court issued a search warrant for appellants residence at 30707 Road 68 in Goshen. In the statement of probable cause, the affiant, Visalia Police Officer Candido Alvarez, recited information from a confidential reliable informant. At the direction of Officer Alvarez, the informant went to the residence and purchased methamphetamine from a person named "Lena." On August 30, 2001, Visalia police officers executed the search warrant and found approximately five and one-half ounces of methamphetamine in the backyard. On January 18, 2002, the district attorney filed an information charging appellant with two drug-related counts and one count of child endangerment.
On February 26, 2002, appellant filed a motion to compel disclosure of the confidential informants identity, alleging there was a reasonable possibility the informant could give testimony favorable to appellant. On March 11, 2002, the district attorney filed written opposition to the motion for disclosure, contending the defense failed to demonstrate the informant was a material witness. On March 15, 2002, the court conducted a contested hearing on the motion and concluded:
"... I was thinking about maybe having an in camera proceeding to see if the informant could add anything. But I havent heard a reasonable possibility that that informant would provide some exculpatory evidence. So that request for disclosure is denied."
Evidence Code section 1041 states in relevant part:
"(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state . . . and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:
"(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or
"(2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice . . ..
"(b) This section applies only if the information is furnished in confidence by the informer to:
"(1) A law enforcement officer."
The prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. The defendant bears the burden of adducing some evidence on this score. (People v. Lawley (2002) 27 Cal.4th 102, 159.) Under California law, it is incumbent on the defendant to make a prima facie showing for disclosure before an in camera hearing is appropriate. (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152.) The defendant need not show the informer would give favorable testimony nor must the defendant demonstrate the informer will give the exact testimony he or she is expected to give. (People v. Saldana (1984) 157 Cal.App.3d 443, 459-460.) However, an informant is not a material witness when he or she simply points the finger of suspicion toward a person who has violated the law. (People v. Wilks (1978) 21 Cal.3d 460, 469.)
In the instant case, nothing in the record suggests that the informant was an eyewitness to the police search of appellants residence. The informants sole connection to the case was his or her provision of probable cause for a search of appellants home. The probable cause was partially based upon the informants controlled purchase of methamphetamine from the appellant several days prior to the police search. In her points and authorities in support of disclosure, appellant argued:
"[D]espite the fact that she was present at the residence when the search was conducted . . . she was not involved in the possession of controlled substances, and that there is a reasonable possibility that the informant would give evidence on the issue of guilt which might result in her exoneration. Specifically, the informant might testify that appellant was not the person who sold him/her a controlled substance, and instead identify someone else as the person who possessed the drugs found in the yard."
At the contested hearing on motion to disclosure, appellants counsel posited:
"[T]he possibilities are endless, as they say. But I guess the scenario could be that the informant goes to the residence, my client says John Doe left his last whatever, and you can have it if you want. And Ill sell it to you. So the transaction was made. The informant leaves. And then they come back August 30th and find stuff hanging on the fence.
"Maybe in that scenario the informant could provide information that would tend to exonerate my client, not with respect to what happened sometime between the ten days, but with respect to what was found hanging on the fence August 30th."
To obtain disclosure of an informants identity, defendant must make a showing that rises above the level of sheer or unreasonable speculation and reaches at least the low plateau of reasonable possibility. (People v. Luera (2001) 86 Cal.App.4th 513, 525-526; People v. Saldana, supra, 157 Cal.App.3d at pp. 459-460.) In our view, defense counsels argument at the hearing on motion for disclosure was speculative at best and insufficient to reach the low plateau of reasonable possibility. Her claim must be rejected.
II.
THE TRIAL COURT PROPERLY CONCLUDED THE SEARCH WARRANT AFFIDAVIT ESTABLISHED PROBABLE CAUSE TO SEARCH
Appellant contends the affidavit in support of the search warrant did not establish probable cause to search her home.
On August 23, 2001, Visalia Police Officer Candido Alvarez executed a statement of probable cause in support of search warrant. Officer Alvarez averred in relevant part:
"Your Affiant was advised by a Confidential Reliable Informant [CRI], that methamphetamine was being sold a Hispanic female adult at the above described location in Goshen, California. The CRI advised your Affiant that the CRI would be able to make a purchase of a quantity of methamphetamine from this residence for the Visalia Police Department.
"The reliability of the CRI has been further ascertained by your Affiant in that the same CRI was, within the last ten days, was searched by a narcotics detective for narcotics and restricted drugs with negative results; then given City funds. The CRI then went to the residence located at 30707 Rd. 68, Goshen, California, being kept under constant surveillance by narcotics detectives up until the CRI entered the residence.
"The CRI at the residence made contact with the Hispanic female adult who identified herself as `Lena at the residence. A conversation then ensued between the CRI and `Lena at the residence. The CRI then requested to make a purchase of methamphetamine from `Lena. The CRI then stated that `Lena handed the CRI a pinkish/tan powdery substance, that `Lena purported to be methamphetamine, in exchange for the amount of City funds. The CRI was observed leaving the residence and then met with your Affiant. The CRI turned over the pinkish/tan substance, which appeared to be Methamphetamine, and relayed the above described facts of the purchase to your Affiant. A second search was made of the CRI and no additional narcotics or restricted drugs were found on the CRIs person.
"Your Affiant subsequently performed a presumptive test on the substance that the CRI had purchased, which indicated a positive reaction for methamphetamine. Inspection of the substance purchased by the CRI, revealed a consistency with the appearance and packaging of methamphetamine and the amount present was commensurate with the amount of funds provided to the CRI.
"Subsequently, your Affiant contacted the Tulare County Sheriffs Department for prior calls for service at 30707 Rd. 68, Goshen, upon doing so your Affiant was advised that at this residence in the past a Hispanic female by the name of Magdalena Torres had been contacted by law enforcement. Your Affiant subsequently obtained a photograph of a Magdalena Guizar Torres with a date of birth of 10/12/69 and of a Magdalena Torres with no middle name but with the same date of birth, from the Tulare County Sheriffs Department Booking Computer. I noted that the persons in both photographs were in fact the same person and that this person had been arrested in 5/12/99 and on 11/6/00 for 11378 of the Health and Safety Code which is possession of a controlled substance for sale. I further noted that the physical description of Magdalena Torres was that of approximately 53" - 57" tall, 155 - 170 pounds, with brown hair, and brown eyes. These descriptions were obtained from both prior mugshot profiles obtained from the same previous bookings.
"The photograph of `Magdalena Guizar Torres (DOB 10/12/69) was then shown to the CRI by your Affiant, at which time the CRI identified the photograph of `Magdalena Guizar Torres as being the same person known to the CRI only as `Lena and that sold to the CRI a quantity of methamphetamine from 30707 Rd. 68, Goshen.
"Your Affiant further states that based on him being bilingual in both Spanish and English, he has knowledge that person[s] who have the first name of Magdalena often go by the shortened nickname of `Lena.
"The reliability has been further ascertained in that the CRIs past assistance to the Visalia Police Department has led to the arrest and/or conviction of ten individuals and information and narcotics intelligence given to the Visalia Police Department has been found to be factual and has been corroborated through various sources.
"Your Affiant has personally observed the aforementioned residence and found that the residence is located and appears exactly as described on page one of this affidavit. That based upon the above facts and information, your Affiant has reasonable and probable cause to believe, that `Magdalena Guizar Torres with a date of birth of 10/12/69 and described on page 4 of this affidavit is currently in possession of a controlled substance for sale, to-wit: methamphetamine at the residence located and described on page one of this affidavit."
Visalia Police executed the search warrant on August 30, 2001, and discovered several ounces of methamphetamine, a scale, and pay-and-owe sheets on appellants property. On February 27, 2002, appellant filed a motion to suppress evidence, contending the affidavit underlying the warrant was not supported by probable cause. On March 11, 2002, the district attorney filed written opposition to the motion, contending the affidavit sufficiently provided probable cause by stating facts on which the officers conclusions were reasonably based. On March 15, 2002, the court denied the motion, stating:
"[F]irst as to the 1538.5 as to the sufficiency of the affidavit, for probable cause purposes, I think it is sufficient. I dont think there is ambiguity that would render it not sufficient for probable cause purposes. [¶] And even if there wasnt sufficient probable cause, I think under Leon, a reasonable experienced officer could have relied on the magistrates issuance of the warrant in good faith."
In reviewing the issuance of a search warrant, all we are asked to decide is whether the magistrate acted properly not whether the police officer did. (Jones v. United States (1960) 362 U.S. 257, 271-272, disapproved on another point in United States v. Salvucci (1980) 448 U.S. 83, 84-85.) A magistrates determination of probable cause is entitled to great deference by reviewing courts. A court reviewing the sufficiency of an affidavit on which a search warrant is issued, should not conduct a de novo review of the evidence. Rather, the magistrates determination of probable cause should be disturbed on review only if the affidavit fails as a matter of law to set forth sufficient competent evidence to support the magistrates finding of probable cause. Probable cause to search exists when all the circumstances set forth in the affidavit demonstrate a fair probability that contraband or evidence of a crime will be found in a particular place. The element of time is crucial to the concept of probable cause. An affidavit supporting a search warrant must provide probable cause to believe the material to be seized is still on the premises when the warrant is sought. Exact dates are not essential if the time can be inferred from the information in the affidavit. A grammarians interpretation of the language of an affidavit is not required and the rules of grammar do not prevail over a common sense and realistic interpretation of the entire supporting affidavit. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) All conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged to uphold the findings of the magistrate if possible. Doubtful or marginal cases should be resolved in favor of upholding the warrant. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784.)
Appellant contends on appeal:
"Here, the informant fell within the least reliable category, and the affiant provided insufficient information regarding the informants prior track record, insufficient corroboration of the scant details purportedly provided by the informant, and an inadequate showing of the informants basis for knowing these few details. As such, the affidavit in support of the search warrant did not establish probable cause to search appellants home.
"The affidavit stated that `a narcotics detective searched the informant `within ten days of August 23, 2001, and, thereafter, the informant went to the `residence at 30707 Rd. 68. The informant was kept under surveillance by `narcotics detectives until he/she entered the residence. The affidavit did not provide the identity of `the narcotics detectives nor is there any independent corroboration of the events which occurred once the informant entered the residence. There was not even any independent verification that `Lena, or `Nena, or appellant was actually inside the residence at the time informant entered.
"Moreover, the affidavit contained no proof of the informants reliability beyond the affiants bald assertions of such. Details supporting the informants reliability must be stated in a factual manner. (People [v.] Hansborough (1988) 199 Cal.App.3d 579, 584.) [¶] . . . [¶]
"The . . . assertions provided insufficient detail upon which the magistrate could make a proper finding of probable cause. They do not establish whether the arrests/convictions were related to controlled substance violations or any criminal activity of a significant nature, nor whether the `information and narcotics intelligence revealed true `inside information or pertained only to easily obtainable facts. The magistrate simply could not have properly assessed the informants reliability based on the above assertions because they contained insufficient facts upon which to base such a finding. [¶] . . . [¶]
"In this case, the affidavit asserted that, at a nonspecific time, on a non-specific date, within 10 days of August 23, 2001, the informant purchased methamphetamine at 30707 Road 68. The affidavit does not establish that controlled substances were still on the premises on August 23, 2001, or that they would be there when the search warrant was executed a full week later on August 30, 2001. [¶] . . . [¶]
"In this case, the affidavit in support of the search warrant contained insufficient time references, insufficient evidence of the informants past reliability and insufficient corroboration of the informants incriminating allegations against appellant. The affiant conducted no investigation beyond a record check on appellant and apparently was not even among those present outside the residence during the alleged buy. This lack of corroboration or supporting facts, and recitation of mere conclusory assertions by the affiant, rendered the affidavit of the `bare bones type condemned by the United States Supreme Court in United States v. Leon (1984) 468 U.S. 897, 924 ...."
In determining whether there was probable cause to issue a warrant, an informants veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his or her report. These elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case. Rather, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place. The United States Supreme Court has expressly rejected the use of any rigid demand that specific tests be satisfied by every informants tip. (People v. Hansborough (1988) 199 Cal.App.3d 579, 584, citing Illinois v. Gates (1983) 462 U.S. 213, 231.)
In the instant case, the affiant, Officer Alvarez, averred the informant was aware of a Hispanic female adult selling methamphetamine from a residence at 30707 Road 68 in Goshen. According to Alvarez, the informants past assistance to the Visalia Police Department had led to the arrest and/or conviction of 10 individuals. He also averred the informants information and narcotics intelligence had been found to be factual and had been corroborated through "various sources." Officer Alvarez went on to aver that the informant participated in a controlled buy within 10 days of the date of the warrant. Alvarez described the buy in detail and noted the informant was kept under constant surveillance by narcotics detectives until he or she entered the residence. Inside the residence at 30707 Road 68, the informant met a female adult who identified herself as "Lena." The informant purchased a quantity of pinkish/tan powder that Lena purported to be methamphetamine. The police observed the informant enter and depart the residence. After leaving the residence, the informant met with Officer Alvarez. Alvarez performed a presumptive test on the substance, which indicated a positive reaction for methamphetamine. The controlled buy increased the informants reliability by corroborating his/her prior information and established that the informant was speaking from personal knowledge.
Officer Alvarez further verified the informants information through the Tulare County Sheriffs Department. Alvarez discovered the sheriffs department had contacted one Magdalena Torres at 30707 Road 68 in the past. The sheriffs department further informed Alvarez that appellant had been arrested in 1999 and 2000 for possession of methamphetamine for sale. Alvarez examined booking photographs for Magdalena Guizar Torres and showed one to the informant. The informant identified the person depicted as "Lena," the individual who sold the quantity of methamphetamine from 30707 Road 68 in Goshen.
Under the totality of the foregoing circumstances, Officer Alvarezs affidavit established a fair probability that contraband or evidence of a crime would be found at appellants residence. Therefore, her claim must be rejected.
In view of this conclusion, we need not offer an extended discussion of the officers alleged good-faith reliance on the warrant as a basis for upholding the search. (People v. Rojas (1981) 118 Cal.App.3d 278, 289-290 [reviewing court need not set forth and dispose of, seriatim, each and every item which counsel chooses to characterize as an issue in the case].)
III.
THE TRIAL COURT PROPERLY DECLINED TO CONDUCT AN IN CAMERA HEARING TO DETERMINE THE VERACITY OF STATEMENTS IN THE SEARCH WARRANT AFFIDAVIT
Appellant contends the trial court erroneously refused to conduct an in camera hearing to determine the veracity of statements contained in the search warrant affidavit.
She specifically argues:
"In this case, the requisite preliminary showing under [People v. Luttenberger (1990) 50 Cal.3d 1] was established because the legality of the search warrant rested upon the uncorroborated observations of a confidential informant. As such, appellant was entitled to production of the items requested in her discovery motion, bearing on the veracity of the informant, to determine whether or not the confidential informant was reliable, and to determine whether or not the affiant deliberately omitted significant and/or material facts from the search warrant affidavit. The trial courts refusal to order a screening of the requested items, and, thereafter, production of all the relevant documents for appellants use violated appellants Fourth, Fifth and Fourteenth Amendment rights to the United States Constitution and Article I, section 24 to the California Constitution."
Section 1237.5 states:
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:
"(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.
"(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Section 1237.5 is an exception to the general rule that appeals may not be brought by defendants who have pleaded guilty or nolo contendere. The section provides that defendants who have pleaded guilty must obtain—as appellant did here—a certificate of probable cause before they may bring an appeal. However, obtaining a certificate of probable cause does not make cognizable those issues that have been waived by a plea of guilty. Under section 1237.5, only constitutional, jurisdictional, or other grounds going to the legality of the proceedings survive a guilty plea. By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime and is therefore not entitled to a review on the merits. Issues which merely go to the guilt or innocence of a defendant are removed from consideration by entry of the plea. Issues held not cognizable following the entry of a guilty plea include: (a) claims involving sufficiency of the evidence; (b) the voluntariness of an extrajudicial statement; (c) a trial courts refusal to disclose the identity of an informant; and (d) fairness of a pretrial lineup. A motion for discovery of confidential information about an informant does not raise an issue going to the legality of the proceedings. Such a motion is legally indistinguishable from nonappealable determinations of the voluntariness of an extrajudicial statement or the fairness of a pretrial lineup. Further, such a motion is identical to the nonappealable determination of a trial courts refusal to disclose the identity of a confidential informant. (People v. Hunter (2002) 100 Cal.App.4th 37, 42-43.)
In the instant case, appellant filed a motion for discovery on February 28, 2002. The motion requested disclosure of a variety of items relating to the confidential informant. The stated purpose of the motion was to obtain information so that appellant could make a showing under Franks v. Delaware (1978) 438 U.S. 154. On March 11, 2002, the district attorney filed written opposition to the motion, calling it a "fishing expedition." In a separately filed document, the district attorney opposed appellants motion for disclosure of the identity of the confidential informant. On March 15, 2002, the court conducted a contested hearing on the motions. After extensive argument, the court denied appellants motion for disclosure of the confidential informants identity, noting, "... I havent heard a reasonable possibility that that informant would provide some exculpatory evidence." The court also denied appellants nonstatutory discovery motion, characterizing it as "a fishing expedition and nothing more."
Under Franks, a criminal defendant can challenge the validity of a search warrant by disputing the factual allegations made in the affidavit in support of the search warrant. To obtain a Franks hearing, however, the defendant must first make a substantial preliminary showing that the affidavit included a false statement made intentionally, knowingly, or recklessly and that the false statement was vital to a finding of probable cause. (Franks v. Delaware, supra, 438 U.S. at pp. 155-156.)
In sum, appellants discovery requests were for information relating to the confidential informant upon whom the officers relied in obtaining a search warrant. As noted in Hunter, a trial courts refusal to disclose the identity of an informant is a nonappealable determination. Thus, her claim on appeal must be rejected.
We also note a defendant has a limited right under Franks v. Delaware, supra, 438 U.S. at pages 165-167, to attack the truth of statements appearing in a search warrant affidavit. Prior to a subfacial challenge to a search warrant, a criminal defendant must offer evidence casting some reasonable doubt on the veracity of the material statements made by the affiant. (People v. Luttenberger (1990) 50 Cal.3d 1, 21.) Here, appellant failed to produce any evidence casting a reasonable doubt on the veracity of the affiants statements. In fact, appellants counsel frankly admitted to the trial court: "And as far as the discovery motion is concerned, Counsel accuses me of being on a fishing expedition. I probably am. But these are difficult when we have no facts. Its difficult to make a factual argument."
DISPOSITION
The judgment is affirmed.