NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

McKINSTER, J.

Defendant and appellant, Ignacio Vega, pled guilty to unlawful possession of marijuana for sales. (Health & Saf. Code, § 11359; count 1.) Pursuant to the plea bargain, the court sentenced defendant to a 16-month split sentence, nine months in custody and seven months on mandatory supervision.

On appeal, defendant requests that this court independently examine the sealed affidavit in support of the search warrant, the search warrant,1 and the sealed in camera hearing on his motion to unseal the affidavit and warrant below to determine whether the court erred in not disclosing more of the affidavit to defense counsel. We have independently examined the affidavit and hold that the court properly redacted the portions of the affidavit relating to the confidential informant before releasing the affidavit to defense counsel below. As such, we hold the court properly determined that probable cause supported issuance of the search warrant.

I. FACTUAL AND PROCEDURAL HISTORY

At the preliminary hearing, an officer testified that on November 10, 2015, he responded to a park to assist in the arrest of defendant. The officer identified defendant and maintained visual contact on defendant until the officer's team was ready to apprehend defendant.

After defendant's apprehension, the officers executed a search warrant of defendant's home, which was "kind of split up in the two different living areas." The officer spoke with the homeowner, defendant's landlord, who rented defendant the far back bedroom, which had the only access to the attic.

Inside the bedroom, the officer found documents bearing defendant's name, a scale, sandwich bags, car keys, and a cell phone. One of the officers reached up into the attic where he found separate bags containing a total of 10 pounds of marijuana. The car keys fit into a Mercedes Benz parked outside, inside which an officer found a small torn piece of plastic bag containing.2 grams of what the officer recognized to be methamphetamine. It later tested positive for methamphetamine. The officer opined that, based on a hypothetical matching the amount of marijuana and the type of paraphernalia the officers found in the room, the marijuana was possessed for the purpose of sales.

On February 29, 2016, the People charged defendant by felony information with felony possession of marijuana for sales (Health & Saf. Code, § 11359; count 1) and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2). The People additionally alleged defendant had suffered a prior prison term. (Pen. Code, § 667.5, subd. (b).)

On June 15, 2016, defendant filed a motion to produce and unseal the affidavit in support of the search warrant2 and/or disclose the informant or, in the alternative, to dismiss the case. Defendant alleged that the warrant signed on November 10, 2015, provided no description of a multiple dwelling unit to be searched. On the same date, defendant also filed a motion to suppress the evidence and quash and traverse the search warrant. The primary basis of the latter motion was that the residence was split into three separate units inaccessible from each other except through the kitchen; hence, according to defendant, the warrant's failure to authorize the search of multiple units rendered it fatally flawed. The People filed oppositions to defendant's motions, noting that there was no division of living areas, merely a division between bedrooms.

At a hearing on July 20, 2016, the court noted: "I did have an opportunity to obtain the warrant and the affidavit. I've had an opportunity to read the entirety of the warrant and the affidavit. It appears that, at least from my first reading, that there are substantial portions which appear appropriate to unseal." The court then conducted an in camera proceeding with the People during which the court and People agreed to unseal and disclose the following portions of the sealed affidavit to defense counsel: the first page; page 2 with the exception of the last paragraph; pages 3 through 5; the third paragraph of page 7 only;3 page 8, paragraphs two through six; page 9, paragraphs one and three; page 10, paragraphs one and two; page 11, paragraphs one, two, and four; page 12, paragraphs two through five; and pages 13 through 17 in their entirety. The court ordered the People to disclose a redacted version of the affidavit and search warrant, in accordance with the in camera proceedings, to defense counsel.

On August 11, 2016, at a hearing presided over by another judge, the court observed: "The warrant itself, the sufficiency of the warrant itself is not being challenged. In fact, when I look at that, there's a mountain of evidence for this search, I think, of probable cause of the . . . location. The issue comes down to whether the police were required to go get a second warrant because there's a—it's a factual dispute among you two as to whether there is a separate residence, or just is there a separate residence and was there a second warrant required. [¶] My question is when I read these, it sounds like—everything I'm hearing from sounds like it was seized out of [defendant's] portion—what he is being charged with are things that were seized from his portion of the home, I think. Or am I wrong?" Defense counsel agreed with the court's summation.

The court then noted: "I don't quite understand your client bringing it because everything was seized within an area under his control. [¶] I couldn't help but notice, I'm reading in there and he is also under some type of probation with search terms and nothing was taken from the area where you're saying they needed to get a second warrant from."4 Defense counsel argued the police showed up with a warrant to search one building which was actually made up of three or four separate living units.5

The People stated: "I provided the Court with two copies, the redacted and the unredacted. . . . Once you've reviewed the full version, you will also see the redacted version, which I had the opportunity to go over with Judge Moyer in chambers in an in-camera viewing, and she excluded certain portions, and you will see the handwritten on the yellow of all the paragraphs that were allowed in. So you have the redacted portion, all of which was given to defense counsel." The People observed: "[T]his is not a house with separate units, this is a single-residence home with one entry. This is not a situation where you have multiple apartments within one building, you have multiple bedrooms within one residence. The fact that the defendant is renting a bedroom out does not make it a separate residence. This is one home, one entryway. And we don't expect officers when they get to request search warrants on a house, not knowing where anyone resides within that home, to specify which bedroom it would be that the defendant would be staying at. That's unreasonable and not practical at all." Defendant argued that the in camera hearing required by the court in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) necessitated the presence of the affidavit's affiant, which had yet to occur, and that defense counsel should be permitted to produce a list of questions to be posed during that hearing.

The court then allowed questioning of the affiant in open court. The narcotics investigator testified he was investigating defendant, was the affiant, and had obtained the search warrant for defendant's residence. At the time he executed the affidavit, he did not know anything about the living arrangements within the residence other than that it was a single family residence. He had gone out to the residence. Exhibits 1 and 2 are pictures of the residence which accurately reflect the way the residence looked, "a single-family residence, single story. It's a one-family residence." From surveillance of the home the officers assumed people other than just defendant were residing therein.

Officers had taken defendant into custody at another location that day. SWAT cleared the residence before any other investigators entered the home. The investigator entered the residence through the front door. All the rooms in the house were accessible from the front door; however, one of the landlord's bedroom doors "was blocked from the inside by a bed." In order to make entry into her bedroom, one had to go through a doorway in the kitchen. The blocked doorway did not split the residence in half; rather, it simply blocked entry into the landlord's bedroom from the hallway.

The investigator spoke to the homeowner, who informed him she had two renters who occupied two of the three bedrooms; all of them shared the same kitchen and living room. The door leading to defendant's room from the hallway was neither blocked nor locked. The investigator did not have to exit the house to enter defendant's bedroom through any exterior doorway. Just inside the door of defendant's room and directly above it, was a closet or attic space in which the officers located two large plastic trash bags containing marijuana.

After the investigator's testimony, defense counsel again contended that the court was required to conduct any in camera hearing regarding unsealing of the affidavit in the presence of the affiant. Defense counsel also maintained that the portions of the redacted affidavit supplied to him did not give rise to sufficient probable cause for issuance of the warrant. The court continued the matter.

Prior to the next hearing, the court issued a written tentative ruling: "Having considered all the relevant materials in camera, including the sealed portions of the search warrant affidavit, the court concludes first that the evidence does not support the allegation of material false statements in the affidavit, and second that the search warrant application established probable cause. The motions to traverse and quash are therefore denied." "The court further rejects defendant's argument that the warrant was facially invalid for a lack of particularity. The evidence establishes that the house was by all appearances an ordinary single-unit residence, and there was no reason for the officers to suspect otherwise until after they began to execute the warrant. But even then, despite the rental of the bedrooms, there was no evidence that the bedrooms were kept separately locked, such that defendant would not have physical access to bedrooms other than his own. It is defendant's burden to show the invalidity of the warrant, and the only evidence was that the bedroom doors were unlocked."

Defense counsel submitted six questions to the court for use during an additional in camera hearing. The court marked and admitted the questions into evidence. Nevertheless, the court noted: "I've reviewed everything, the sealed and the unsealed portions of the affidavit. As I said here, I have to determine whether there's a reasonable probability the Defense would prevail on those issues. I don't find that in this case here." "So I feel I have enough evidence on that without some more in-camera questioning. As I said, I've read everything."

Defense counsel once again maintained that a proper Hobbs in camera hearing required the presence of the affiant. Defense counsel further contended that once the police entered the residence, they should have realized they needed a second warrant because there was a separate dwelling unit inside. The court denied defendant's motions to unseal, dismiss, traverse, and quash.

On August 31, 2016, defendant pled guilty as recounted above. The maximum sentence for defendant's conviction was three years. In return for the plea, defendant received a 16-month split sentence: nine months of custody time and seven months of mandatory supervision. The court granted defendant a total of 297 days of custody credits and released defendant on mandatory supervision. On the People's motion the remaining count and allegation were dismissed.

II. DISCUSSION

Defendant requests that this court conduct an independent examination of the sealed affidavit in support of the search warrant, the search warrant, and the in camera proceedings to determine whether the court below erred in failing to unseal additional portions of the affidavit or the affidavit in its entirety. The People agree that we should conduct such an independent examination.

"A defendant may move to suppress evidence obtained as the result of a search warrant on the ground there was no probable cause for the issuance of the warrant." (People v. Camel (2017) 8 Cal.App.5th 989, 1009.) "`[O]n a properly noticed motion by the defense seeking to quash or traverse [a] search warrant' where any part of the search warrant affidavit has been sealed, `the lower court should conduct an in camera hearing. . . . It must first be determined 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.' [Citation.]" (Ibid., quoting Hobbs, supra, 7 Cal.4th at p. 972.) "We independently review the court's decision to seal a portion of the search warrant affidavit." (People v. Camel, supra, at p. 1009.) "It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause." (Hobbs, supra, at p. 959.)

"If the court determines the affidavit, or a portion thereof, was properly sealed, it must next determine if there is any merit to the defendant's motion to traverse based on `the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing.' [Citation.] If not, `the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse.' [Citation.] By the same token, if the defendant has also moved to quash the warrant, `the court should proceed to determine whether, under the "totality of the circumstances" presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was "a fair probability" that contraband or evidence of a crime would be found in the place searched. . . .' [Citation.] In the event the court concludes probable cause existed to issue the search warrant, it should `report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.]' [Citation.]" (People v. Martinez (2005) 132 Cal.App.4th 233, 241.)

Where we "agree with the trial court that information contained in the confidential attachment, if disclosed, would tend to reveal the identity of the confidential informant or informants" and "[o]ur independent review of the record and sealed materials shows there is no reasonable possibility defendant could prevail on his motion[s,]" we may hold "under the totality of the circumstances there was probable cause to issue the search warrant." (People v. Martinez, supra, 132 Cal.App.4th at pp. 241-242.)

We have conducted an independent examination of both the redacted and unredacted affidavits in support of the search warrant. We agree with the initial court's determinations which unsealed and ordered released to defense counsel the redacted version of the affidavit. All the redacted portions of the affidavit are information pertaining to the confidential informant and remain properly sealed. We also agree with the subsequent court's determination that the affidavit supplied sufficient probable cause for issuance of the warrant and that a separate warrant was not needed once officers made entry into the residence. Finally, we note that a court conducting an in camera Hobbs hearing is not required to have the affiant present. (Hobbs, supra, 7 Cal.4th at p. 973 ["[T]he lower 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." (Italics added.)].)

III. DISPOSITION

The judgment is affirmed.

RAMIREZ, P. J. and MILLER, J., concurs.