(Super. Ct. No. 10F04664)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of possessing heroin for sale and being a felon in possession of a firearm, defendant Milton Blaine Williams appeals, contending: (1) the trial court erred in allowing a portion of a search warrant affidavit to remain sealed and in denying his motions to traverse and quash the search warrant; (2) his trial attorney rendered ineffective assistance of counsel by failing to argue in the trial court that it violated his constitutional rights for the court to determine his motions to traverse and quash the warrant based on an in camera review of the sealed portion of the affidavit from which his attorney was excluded; (3) the trial court erred in admitting evidence of a prior conviction of possessing heroin for sale on the issue of intent; (4) the prosecutor violated his constitutional rights by refusing to grant immunity to a proposed defense witness; and (5) the trial court abused its discretion in refusing to allow the defense witness to testify at all because the witness was going to assert his Fifth Amendment right against self-incrimination in response to some of the prosecutor's anticipated questions on cross-examination.
Finding no error and no violation of defendant's constitutional rights, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2010, a magistrate signed a warrant authorizing the search of defendant's apartment for evidence relating to the use and sale of heroin. (At trial, the parties stipulated that defendant had "a longstanding addiction to heroin.") The magistrate also ordered two pages of the search warrant affidavit sealed to protect the identity of one or more confidential informants.
A few days later, law enforcement officers executed the search warrant. In the apartment they discovered, among other evidence suggestive of the sale of heroin, .17 grams of heroin in five separate pieces of plastic and a suspected pay-owe sheet on top of the refrigerator in the kitchen. They also discovered two firearms. And in the bedroom that belonged to the two 18-year-old sons of defendant's girlfriend, the officers found approximately 100 grams of marijuana in five plastic baggies.
Defendant was charged with possessing heroin for sale and being a felon in possession of a firearm. The complaint also alleged that defendant had a prior conviction of possessing a controlled substance for sale in 1999.
Before trial, defendant brought a motion, following the procedure set forth in People v. Hobbs (1994) 7 Cal.4th 948, to have the trial court conduct an in camera review of the sealed material to determine whether the sealing was proper, to traverse and quash the warrant, and to suppress the evidence found in the apartment. The trial court did so and (1) found that the affidavit was properly sealed, (2) denied the motion to traverse the warrant because "defendant's general allegations of material misrepresentation or omissions [we]re not supported," and (3) denied the motions to quash the warrant and suppress the evidence seized in the search because "there was probable cause for the issuance of the warrant."
Also before trial, defendant moved to exclude evidence of his prior possession with intent to sell. The prosecutor opposed the motion because he was "seeking to admit the prior conviction on . . . the issue of intent." The trial court ruled that the prior conviction would be admissible in the prosecution's case-in-chief to prove defendant's intent. Subsequently, the trial court admitted a certified copy of defendant's prior conviction of possession of heroin for sale.
During trial, defense counsel proposed to call as a witness Monroe Montgomery, one of the sons of defendant's girlfriend who lived in the apartment. Montgomery informed the court that if called as a witness, he would assert his Fifth Amendment privilege against self-incrimination to any questions about whether the bedroom in which the marijuana was found, or the marijuana itself, was his. He would, however, answer questions about the alleged pay-owe sheet found in the search and would testify that the piece of paper actually "made reference to auto parts to a 1986 Buick Skylark that he was in the process of fixing up . . . and what the cost [of those parts] would be."
The court's initial inclination was to prohibit Montgomery from testifying because "it would be appropriate for the prosecution to explore" the topic of the marijuana found in the bedroom, and "allowing him to testify to some things while denying the People access to cross-examine him about things that are directly relevant to his credibility would be prejudicial to the People." The court, however, allowed defense counsel some time to find any case law that might "convince [the court] otherwise."
Having found no helpful case law, defense counsel requested that the prosecutor offer Montgomery use immunity. Noting that the marijuana was "indicative . . . of a possession for sale charge," the prosecutor declined to offer Montgomery immunity and argued that if Montgomery testified he would want to cross-examine Montgomery about the marijuana.
The trial court acknowledged that Montgomery's testimony about the piece of paper would be "relevant and goes to a material issue," but the court declined to allow him to testify because he intended to claim privilege and refuse to testify about the marijuana.
Defense counsel argued to the jury that defendant "did not possess the heroin . . . for purposes of sale. . . . He possessed it for his own use." The jury rejected that argument and found defendant guilty of both charges. The trial court sentenced him to an aggregate term of nine years in prison. Defendant timely appealed.