IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HENRY LALO CORREA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F01430)
The opinion of the court was delivered by: Duarte , J.
P. v. Correa
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his motion to suppress evidence was denied, defendant Henry Correa pled no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) with an enhancement for over one kilogram in weight (Health & Saf. Code, § 11370.4, subd. (b)(1)) and two counts of child endangerment (Pen. Code, § 273a, subd. (a)). Defendant also admitted he had a strike prior (Pen. Code, §§ 667, subd. (b)-(i); 1170.12) and a prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (a)).*fn1 Sentenced to 13 years in prison, defendant appeals. He contends the trial court erred in denying his motion to suppress because the information in the affidavit supporting the search warrant was stale and incorrect.
Defendant also requests that this court review the sealed portion of the affidavit. We have reviewed the sealed portion of the affidavit and find it provides ample probable cause to support the search warrant. We affirm.
Defendant lived with Danielle Gallego and her two young children at 9042 Epernay Court. On March 3, 2010, a search of the defendant's master bedroom in his residence revealed he possessed three and one-half pounds of methamphetamine, cash, and scales. After he was arrested, defendant admitted he possessed and sold methamphetamine. He had three pounds of the drug in a Foster Farms Mini Corn Dog box stuffed between mattresses; another half pound was in a floor safe in his bedroom. When the officers entered by kicking in the bedroom door, Gallego's two-year-old son was present in the room. The methamphetamine had a street value of $40,000.
I Defendant's Claim
Defendant contends the trial court erred in denying his motion to suppress evidence because the information set forth in the affidavit to establish probable cause was stale and incorrect. The affidavit contained information from a confidential informant who had revealed a year earlier that defendant was a dealer in half and whole pounds of methamphetamine. The affidavit stated defendant had two prior convictions for possession for sale, when in fact he had only one such conviction. Recognizing that a portion of the affidavit was sealed, defendant asks this court to review that sealed portion.
The Attorney General concedes that the public portion of the affidavit does not provide probable cause for the search warrant and joins the request for this court to review the sealed portion of the affidavit.
II The Affidavit
On February 25, 2010, Detective Brian Lockhart sought a search warrant for the house at 9042 Epernay Court, three vehicles, defendant, and James Aviles for evidence relating to methamphetamine. In his affidavit, Lockhart stated he had recently met with a confidential informant who told him Aviles was selling methamphetamine. Lockhart initiated a narcotics investigation of Aviles. A SMUD check for the address 9042 Epernay Court showed defendant as the subscriber. Another detective told Lockhart that a year ago a confidential informant had said defendant was a dealer in methamphetamine in amounts of one-half pound to one pound. Lockhart initiated a narcotics investigation of defendant; a criminal history check showed defendant had two convictions for possession for sale of a controlled substance.*fn2
Lockhart conducted surveillance and saw defendant arrive at 9042 Epernay Court in a Lexus driven by an unknown female. The Lexus was registered to defendant. About a half hour later, defendant and the female took a Dodge Charger to a store.
Lockhart requested that the confidential informant's identity not be disclosed as disclosure could endanger the informant and would destroy his future usefulness to law enforcement. The detective further requested that the remaining portion of the affidavit, referred to as Exhibit A, be sealed pursuant to People v. Hobbs (1994) 7 Cal.4th 948, 975 (Hobbs).
The court granted the request to seal a portion of the affidavit and ordered Exhibit A sealed.
Defendant moved to quash the search warrant and suppress evidence pursuant to Penal Code section 1538.5. After reviewing the sealed portion of the affidavit, the court found the confidential information was properly sealed and it provided current, not stale, information that provided probable cause for the warrant. The court also addressed the error as to defendant's prior convictions. The prosecution explained that defendant's rap sheet showed two entries for the single conviction and the detective misinterpreted the record. The defense stipulated to the dual entry and the court found the explanation reasonable. (See Arizona v. Evans (1995) 514 U.S. 1, 11 [131 L.Ed.2d 34, 45].) The court struck the reference to the second conviction and found the affidavit provided probable cause for the search warrant.
III The Applicable Law
In Hobbs, supra, 7 Cal.4th 948, 971, the California Supreme Court concluded that all or any part of a search warrant affidavit may be sealed to protect the informant's privilege and to protect the identity of the confidential informant. Where a defendant moves to quash or traverse the warrant, the trial court should conduct an in camera hearing pursuant to the guidelines of Evidence Code section 915, subdivision (b) and People v. Luttenberger (1990) 50 Cal.3d 1, 20-24. (Hobbs, supra, 7 Cal.4th at p. 972.) The trial court must determine whether there are sufficient grounds to maintain the confidentiality of the informant and then whether it was necessary to seal the affidavit to avoid revealing the informant's identity. (Ibid.)
Further review depends on the nature of the motions noticed by defendant. (Hobbs, supra, 7 Cal.4th at p. 973.) Where, as here, the defendant moved to quash the warrant, the court must determine whether the totality of the circumstances indicated a fair probability that evidence or contraband would be found at the place searched. (Id. at p. 975.)
"The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] 'The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041, quoting Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].)
IV Our Review
We have reviewed the sealed portion of the affidavit and have determined the trial court complied with the procedures set forth in Hobbs. Further, we find the sealed portion of the affidavit provides current information that gives "'a fair probability that contraband or evidence of a crime will be found in a particular place.'" (People v. Kraft, supra, 23 Cal.4th at p. 1041.)
We agree with the trial court that the error in reciting the number of defendant's prior drug convictions was clearly an innocent or negligent mistake and thus did not affect the validity of the search warrant. (Franks v. Delaware (1978) 438 U.S. 154, 171 [57 L.Ed.2d 667, 682].) Even if the error were classified as deliberate or reckless, after setting aside the erroneous inclusion and consideration of a second drug conviction "there remains sufficient content in the warrant affidavit to support a finding of probable cause." (Id. at pp. 171-172 [57 L.Ed.2d at p. 682].) The trial court properly denied defendant's motion to suppress evidence.*fn3
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. ROBIE , J.