Filed 10/5/16 P. v. Alvear CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE ,
Plaintiff and Respondent
,

v.

LINO ALV EAR
Defendant and Appellant. B 264603
(Los Angeles County Super. Ct. No. B A 427935 )

APPEAL from a judgment of the Superi or Court of Los Angeles County, Robert
Vanderet
, Judge

. Affirmed

. Miriam K. Billington , under appointment by t he Court of Appeal, for Defendant and Appellant Lino Alvear

. Kamala D. Harris, Attorney General, Gerald A . Engler
, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Abtin Amir, Deputy Attorney s General, for Plaintiff and Respondent.

______________________________2

Defendant Lino Alvear appeals a judgment convicting him of possession for sale
of cocaine, a controlled substance (Health & Saf. Code, § 11351). The evidence against
defendant was seized p ursuant to a search warrant based upon information provided by a
confidential informant (C I ) and contained in the sealed portion of the supporting
affidavit. D efendant’s motion to unseal, quash and traverse the search warrant under People v. Hobbs (1994) 7 Cal.4th 948 ( Hobbs ) was denied after the trial court reviewed the sealed portion of the affidavit in camera

. Defendant challenges the denial of his
motion to unseal, quash and traverse

. We affirm.

FACTUAL AND PROCEDURAL SUMMARY
On J uly 17, 2014, Offic er Bill Wilson and more than a dozen other officers of the Los Angeles Police Department (LAPD) executed a search warrant at a n apartment on West 60th Street in Los Angeles. The officers forced entry after defendant answered the
door but said he was unabl e to open the security screen door

. When the officers entered the apartment , defendant and his fiancée were present in the living room and their five young children were elsewhere in the residence. Officer Wilson searched the closets in the living room and found an unlocked plastic gun case containing a .45

- caliber semiautomatic pistol and a loaded magazine

. Officers also found additional boxes of ammunition, jewelry and $852 in cash. In the kitchen, officers discovered an Ajax can wit h a false bottom containing 27 plast ic baggies of cocaine totaling 5.82 grams. Another bag gie containing cocaine was found in
defendant’s vehicle. After receiving Miranda 1 warnings and waiving his rights, defendant told officers that he bought a large quantity of cocain e for personal use. also told officers that the firearm found in his closet was registered in his name and that he kept it to protect himself and his family

. The warrant authorizing the search of defendant ’s home was obtained based on the
affidavit of Officer Wilson, which included a “Confidential Attachment ” that was sealed by the magistrate in order to protect the identity of a CI

. The unsealed portion of the

1 Miranda v. Arizona (1966) 384 U.S. 436.3

affidavit describes Officer Wilson’s professional background, training and experience. It

a lso describes how LAPD surveillance of the defendant’s home confirmed that he lived at the specified address and drove a particula r vehicle

. The unsealed portion of the affidavit merely states that Officer Wilson “used Department resources to investigate” the
defendant. The sealed portion contains information regard ing the CI’s background and experien ce working with law enforcement on prior narcotics investigations

. It also
contains detailed information about the de fendant and contraband alleged to be in his possession

. Defendant moved to unseal, quash and traverse the warrant and to suppress the
seized evidence pursuant to Hobb s , supra , 7 Cal.4th 9 48

. On October 27, 2014, the trial court indicated that the parties w ere present in court to hear defend ant’s moti on to quash
and traverse under Hobbs

. The court stated : “I have reviewed the sealed portion of the

warrant. I find that it was properly sealed, and the motion to unseal is denied. I also find
that there is sufficient cause for issuance of the warrant, and there is no basis for me to grant the motion to traverse.” The court accordingly denied defendant’s motion to unseal, quash and traverse. On April 7, 2015, the Los Angeles County District Attorney’s Office filed an
amended information cha rging defendant with possession for sale of a controlled substance (Health & Saf. Code, § 11351) with a special allegation that he committed the offense while personally armed with a firearm (Pen. Code, § 12022, subd. (c)). Defendant pled not guilty and d enied the special allegation. Following a bench trial, the court found defendant guilty of possession for sale of a controlled substance, but found the allegation regarding the firearm to be not true. The court suspended the imposition of sentence and placed defendant on three years formal probation with credit for one day of county jail. Defendant also was ordered to perform 60 days of Cal t rans service and pay various assessments and fines. Defendant filed a timely notice of appeal.4 DISCUSSION
On appeal, d efendant contends that Hobbs requires this c ourt to “ conduct an independent review of the sealed in camera proceedings and search warrant affidavit” to determine whether the affidavit was properly sealed, contains material false statements or omi ssions
, and establishes probable cause to support the issuance of the search warrant. Respondent agrees that such review is appropriate. After reviewing the sealed portion of the affidavit, and for the reason s discussed below, we conclude the trial court properly denied defendant’s motion to unseal, quash and traverse the search warrant

. The Hobbs Procedure The common law informant’s privilege is codified in Evidence Code section 1041, 2 which provides that a public entity may refuse to disclose the ident ity of a poli ce informant if disclosure would be against the public interest. The statute further provides
that w hen a search warrant is valid on its face, a public entity bringing a criminal

proc eeding may establish the legality of the search without rev ealing to the defendant any
offic ial information or an informant’s identity. (§ 1042, subd. (b).)
In Hobbs
, our Supreme Court “conclude[d] that , taken together, the informant’s privilege ( § 1041)

. . . and the codified rule that disclosure of an informan t’ s identity is not required to establish the legality of a search pursuant t o a warrant valid on its face ( § 1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege and protect the identity of a confidential informant.” ( Hobbs
, supra , 7 Cal.4th at p. 971.) The c ourt also recognized
and addressed “the inherent tension between the public need to protect the identities of confidential informants, and a criminal defendant’ s right of reasonable access to information upon which to base a challenge to the legality of a search warrant. ” ( Id. at
p. 957.)
Wh en a search warrant affidavit ha s been fully or partially sealed
, Hobbs prescribes certain procedures in order to “strike a fair balance between the People’s right

2 All further undesignated statutory references are to the Evidence Code, unless otherwise specified.5

to assert the informant’s privilege and the defendant’ s discovery rights.” ( Hobbs
, supra , 7 Cal.4th at p. 972 ; see also People v. Galland (2008) 45 Cal.4th 354, 363

- 3 65 ( Galland
II ) [ describing Hobbs procedure ] .) The c ourt in Hobbs instructed that “[o]n a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing” pursuant to section 915 , subdivision (b) 3 and People v. Luttenberger (19 90) 50 Cal.3d 1, 20

- 24. 4 (See Hobbs , at p. 972.) “ 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. ” ( Id

. at p

. 973.) However, t he court should afford defense counsel “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. ” ( Ibid .) At the in camera hearing, the trial court must f irst determine whether the affidavit

was properly sealed. ( Hobbs
, supra , 7 Cal.4th at p. 972.) “It must first be determined

3 Section 915, subdivision (b) provides that when a court is rul ing on an informant’s privilege claim under sections 1041 and 1042 and is unable to do so with out requiring disclosure of the assertedly privileged material, it may conduct an in camera hearing where the inform ation is disclosed to the court.

4 In Lutten berger , the defendant challenged the veracity of factual statements in a search warrant affidavit that was based on information provided by a CI. ( People v. Luttenberger
, supra , 50 Cal.3d at p. 8.) Defendant sought a Franks hearing ( Franks v. Delaware (19 78) 438 U.S. 154 ) to determine whether the affidavit included false statements, but because the identity of the CI was unknown, defendant was unable to make the “‘substantial preliminary showing’ that (1) the affidavit included a false statement made ‘ know ingly and intentionally, or with re ckless disregard for the truth,’ and (2) ‘ the allegedly false statement is necessary to the finding of probable cause. ’” ( Luttenberger
, at p. 10; quoting Franks
, at p. 156.) In order to implement Franks in cases involvi ng a CI, Luttenberger relaxed the preliminary showing requirement and established an in camera review and discovery procedure. (See Luttenberger, at pp. 21

- 24). The defendant must offer evidence that casts a reasonable doubt on the veracity of statements made by the affiant, and must raise a substantial possibility that the allegedly false statements were material to the probable determination. ( Id. at pp. 21

- 23.) If this preliminary showing is satisfied, the trial court should then conduct an in camera review of the police records specified by the defendant to determine whether they support the allegations of material misrepresentations or omissions

. ( Id. at p. 24.)6

whether sufficient grounds exist for maintaining the confidentiality of the informan t’ s identity. It should then be determined wh ether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary t o avoid revealing the informant’ s identity.” ( Ibid. ) If the court “finds that any portion of
the affidavit sealed b y the magistrate can be further redacted, and the remaining excerpted portion made public without thereby divulging the informant’ s identity, such additional limited disclosure should be ordered.” ( Id. at p. 972, fn. 7 .)
If the trial court determines the affidavit was properly sea led, it then must consider
defendant’s motion to traverse and quash based on “the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing.” ( Hobbs
, supra , 7 Cal.4th

. a t p. 974 .) In ruling on the motion to traverse, the court must
determine whether “ the affidavit included a false statement made ‘ knowingly and intentionally
, or with reckless disregard of the truth, ’ and [ whether ] ‘ the allegedly f alse
statement is necessa ry to the finding of probable cause. ’” ( I bi d. , quoting Franks v.
Delaware
, supra , 438 U.S. at pp. 155

- 1 56

. ) In ruling on the motion to quash, the trial
court must determine whether the affidavit furnished probable cause for the issuance of the warrant, t hat is, “whether, under the ‘totality of the circumstances’

. . . there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. ” ( Id. a t p. 975 , quoting Illinois v. Gates (1983)
462 U.S . 213, 238 .) If the court determines there is a “ reasonable probability ” that the defendant will prevail on the motion to traverse or quash , the prosecutor must either disclose the sealed materials to the defense or suffer the entry of an adverse order on the
motion

. ( Id. at pp. 974

- 975.) Because the defendant will be ignorant of the content of the sealed portions of the affidavit, the court “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.” ( Hobbs
, supra , 7 Cal.4th at
p. 973.) These “ materials will invariably include such items as relevant police reports and other information regarding the informant and the informant’ s reliability. ” ( Ibid .)7

The court “may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. [C itations.]” ( Ibid .) Finally, the c ourt noted that “ [i] n all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant appl ication for possible appellate review. [Citations.]” ( Id. at 975 .) Standard of Review Citing Hobbs , defendant asserts we must conduct an “independent review” of the
sealed record and review the trial court’s denial of his motion to unseal, quash and

tra verse de novo. Respondent agrees that independent review of the sealed materials is appropriat e, but maintain s that Hobbs pr escribes an abuse

- of

- discretion standard of
review

. The parties’ disagreement is understandable because the standard under Hobbs i s unclear

. Our Supreme Court concluded the “trial court acted within its sound discretion in conducting its own in camera review of the sealed materials

. . . and in thereafter denying defendant’s motions to traverse and quash the search warrant.” ( Hobbs
, supra , 7 Cal.4th at p. 976 .) However, the c ourt also wrote : “ We conclude, based on our review of the record and sealed materials, that it was not reasonably probable defendant could prevail on her motions to traverse or quash the search warrant. ” ( Id. at p. 977 .)
We believe Hobbs is best understood to prescribe an abuse

- of

- discretion standard to procedural aspects of the in camera review process. Clearly, the trial court must at least review the sealed affidavit, determine whether the document was pr operly sealed, and analyze the questions raised by defendant’s motions to quash and traverse. (See People v. Galland (2004) 116 Cal.App.4th 489, 490 ( Galland I ) [holding that “[t]he trial
court’s refusal to conduct the in camera review was a clear abuse o f discretion under [ Hobbs ]”].) However, the scope and handling of the in camera review process are
matters left to the trial court and reviewed for abuse of discretion

. ( See Hobbs
, supra , 7 Cal.4th at p p . 97 3, 976.)
W hen it comes to the substantive issu e of whether the trial court properly denied defendant’s motions , our review is effectively de novo. Hobbs suggests we review the8

record and sealed materials in order to make the same determination as the trial court: whether there is a “reasonable proba bility” that defendant could prevail on the motion to quash or traverse. ( Hobbs
, supra , 7 Cal.4th at p p . 97 4, 977.) This analysis depends on the respective legal standards for each motion. Because both of these motions serve to attack the search warrant in order to suppress the seized evidence, the sta ndard of review that applies to a suppression motion is instructive: “ When reviewing the grant or denial of a motion to suppress, an appellate co urt must uphold the trial court’ s express or implied finding s of fact if the facts are supported by substantial evidence. However, we use our independent judgment to determine whether those facts estab lish probable cause.” ( People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716; see also People v. Leyba (1981)
29 Ca l.3d 591, 597.) Whe re , as here, the trial court review ed a sealed affidavit in camera,
and there are no findings of fact
, we necessarily review the information in the sealed record independently, and apply the relevant legal standard de novo. (See People v. Martinez (2005) 132 Cal.App.4th 233, 241 [holding that the trial court properly denied defendant’s motion to unseal the warrant affidavit after an “ independent review ” of the
record and sealed materials and determining “there is no reasonable possibili ty defendant could prevail on his motion”]

. ) Analysis After conducting an independent review of the public and sealed portion s of the
search warrant affidavit
, w e conclude the trial court properly denied defendant’s motion to unseal, quash and traverse th e search warrant. T he trial court appears to have made this determination solely based on its own in camera review of the sealed portion of the
affidavit. There is no indication in the public or sealed portions of the record that the trial
court convened an in camera hearing to question the prosecut or , Officer Wilson, or the
CI

. 5 Nor is there any indication that the trial court requested any additional materials

5 Defense counsel appears to believe that the trial court conducted an in camera heari n g and a sealed transcript of such a proceeding is available in the record on appeal. The People note that “consistent with Hobbs
, it appears that the trial court held an in9

such as police reports or other information regarding the CI

. We are satisfied that an in ca mera review of the sealed record was sufficient in t his case, and the trial court did not abuse its discretion in forgo ing questioning the prosecutor , affiant, CI , or any other witness

. Although some courts have referred to the in camera hearing as “requi red” under Hobbs
, 6 we do not read the opinion to affirmatively mandate a formal testimonial hearing in every case. On one hand, Hobbs suggests that an in camera hearing is generally required to conduct the necessary review.
After describ ing the hearing p rocedure, the c ourt noted that “ [i] n all instances , a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should
be retained in the record

. . . .” ( Hobbs
, supra , 7 Cal.4th at p. 975, italics added.) Nevertheless, H

obbs stated only that the trial court “should” conduct a hearing under the guidelines set forth in section 915, subdivision (b) and Luttenberger
, supra , 50 Cal.3d at pages 20 to 24. ( Hobbs
, supra , at p. 972

. ) Hobbs also str essed that the trial court has

“ discret ion” regarding whether it is “ necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. ” ( Id. at p. 973; see also Luttenberger
, supra , at p. 21 [“[W] hether to convene an in camera examination or to order discovery will remain a matter within the trial court’s discretion. [Citations.]”].) In this case, we conclude the trial court did not abuse its discretion in determining that a f ormal in camera hear ing was un necessary . (Cf.
Galland I , supra , 116 Cal.App.4th at p. 495 [holding that the trial court had “ no discretion to forgo the in camera review ” required by Hobbs , but noting that the tr ial judge had not reviewed the sealed portion of the warrant aff idavit nor was the sealed

camera hearing and/or reviewed the public and sealed materials supporting the sea rch warrant in chambers.”

6 In Martinez , the court noted that “[i]n cases where all or part of a search warrant affidavit has been sealed and the defendant moves to traverse and quash the warrant, the court is required to conduct an in camera hearing . . .” ( Martinez , supra , 132 Cal.App.4th at p. 240 , italics added .) However, whether Hobbs requires an in camera hearing in every case was not at issue in Martinez , and the opinion contains no discussion on th is matter beyond a brief summary of the Hobbs procedure. (See id. at pp. 240

- 242.)10

document part of the record on appeal].) Based upon our independent review of the s ealed portion of the affidavit, we also
find the trial court properly denied defendant’s motion to unseal, quash and traverse the
search warrant. First, we agree with the trial court that the confidential attachment to the affidavit was properly sealed since information in the sealed document
, if disclosed,
could reveal the identity of the CI. It was not possible for the court to provide a redacte d
version of the sealed document without putting the CI in jeopardy b ecause the defendant could have discerned his or her identity based on the facts surrounding the information
and the circumstances under which the information was gathered

. Thus, the tri al court did not err in denying defendant’s motion to unseal the affidavit. Second, based on our review of the sealed portion of the affidavit
, w e conclude there is no reasonable probability that defendant would have prevail ed on his motion to quash or tr averse. With regard to the motion to traverse, the sealed document contain s no inconsistencies or insufficiencies indicating that the affiant included a false statement made “ knowingly and intentionally
, or with reckless disregard of the truth ” that was

“ necessary to the finding of probable cause.” ( Franks
, supra , 438 U.S. at pp. 155

- 1 56

. )
Rather
, information in the declaration was verified through police surveillance and the
fruitful search of his residence when the warrant was executed. The trial cour t therefore correctly found no basis to grant the motion to traverse. With regard to the motion to quash, we find the information contained in the sealed portion of the affidavit furnished probable cause to issue the search warrant. When evaluating proba ble cause , an informant’ s tip is scrutinized in light of the “ totality
of the circumstances ” to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” ( Gates , supra , 462 U.S. at p. 238.) The informant’s reliability and basis of knowledge are “highly relevant” to this analysis ; however, a deficiency in one of these elements “may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” ( Id. at p. 233 .)
In the sealed affidavit , Officer Wilson attested to the CI’s reliability based on his11

o r her participation in multiple narcotics investigations over the p revious six years
result ing in numerous arrest s of persons involved in the sale of narcotics and possession of illegal firearms

. ( E .g., People v. Mayer (1987) 188 Cal.App.3d 1101, 1117 [ affidavit asserting that the informant “had given information to the affiant in excess of ten times
over the last t wo years resulting in the issuance of search warrants, the seizure of controlled substances and the arrest of numerous suspects, establishes the reliability of the informant.” ].) The CI provided detailed information that was based on first

- hand knowledge. ( Gates , supra , 462 U.S. at p. 234 [noting that a “ detailed description of alleged wrongdoing, along with a statement that the event was observed first

- hand,
entitles [the informant’s] tip to greater weight than might otherwise be the case. ”].) W e conclu de that under the totality of the circumstances, there was a “ fair probability ” that contraband would be found in the defendant’s residence based on the information provided by the CI. ( Id. at p. 238.) This conclusion is bolstered by the rule that doubtf ul or marginal cases are to be resolved with a preference for upholding a search under a

warrant. ( Mikesell
, supra , 46 Cal.App.4th at p. 1716.)

DISPOSITION
T he judgment is affirmed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE , J. COLLINS, J.