Filed 5/28/13 P. v. Meredith CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B234698

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA113133)
         v.

THOMAS ALLEN MEREDITH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Higa, Judge. Reversed and remanded.
         Helen Simkins Irza, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
                                      ___________________________
       Thomas Allen Meredith was convicted by a jury of possession of ammunition by a
felon and possession of a controlled substance for sale (methamphetamine), items that
were discovered in the course of a search pursuant to warrant, and one count of
possession of a controlled substance (methamphetamine) discovered in a later arrest. He
was sentenced to a state prison term of four years. On appeal Meredith contends the
affidavit submitted in support of the warrant contained intentional and material
misstatements of fact and that in ruling on his motion to traverse the search warrant the
trial court improperly conducted an in camera hearing pursuant to People v. Hobbs
(1994) 7 Cal.4th 948 (Hobbs), rather than a contested evidentiary hearing pursuant to the
United States Supreme Court’s decision in Franks v. Delaware (1978) 438 U.S. 154
[98 S.Ct. 2674, 57 L.Ed.2d 667] (Franks). He also contends the court committed
instructional error. We reverse.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Warrant
       On November 24, 2009 Los Angeles County Sheriff’s Detective Gilbert Arakawa
sought and was issued a warrant to search Meredith’s Whittier residence and a storage
unit in La Habra based on information indicating Meredith, a felon, was engaged in the
sale of methamphetamine and was in illegal possession of a firearm. In support of the
required showing of probable cause, Arakawa submitted an affidavit, based on his
personal knowledge, stating he had been contacted by two persons familiar with firearms
and the sale of illegal narcotics (one identified as a confidential reliable informant (CRI)
and the other as a confidential informant (CI)) who told Arakawa that Meredith was
supplying street level drug dealers with methamphetamine and was concealing the drugs
in the bed of his pickup truck. The CI also told Arakawa that Meredith sometimes
concealed the drugs in the engine compartment of his truck or in hidden compartments
sewn into the front of his pants when he left the truck and that he spoke frequently and
passionately about his .45 caliber semiautomatic handgun.
       In addition, the affidavit stated Detective Arakawa had initiated surveillance of
Meredith’s residence on November 19, 2009. That afternoon, he saw Meredith conceal a

                                              2
grocery bag in the bed of his truck. Two hours later Arakawa followed Meredith, driven
by his brother in a different truck, to a storage facility where Meredith entered a unit
while his brother waited in the truck. On November 23, 2009 Arakawa watched
Meredith enter his motor home, which was parked in front of the house, holding a
flashlight. Inside the motor home, Meredith held up a gallon-sized plastic bag containing
five to six separately packaged racquetball-sized balls of a white substance that
resembled methamphetamine. Arakawa, who was located 150 feet away from the motor
home and was using binoculars, stated he was able to view the contents of the bag
because it had been illuminated by Meredith’s flashlight. Meredith then entered the
garage of the house, cradling something in his arm, and returned to the truck a few
minutes later. He looked around, reached into the front of his shorts and then reached
into the bed of the truck. Half an hour later Meredith left in his truck and drove to a
shopping mall. He circled the lot and parked, staying in his truck for about 15 minutes.
When he got out of the truck, he reached into the bed of the truck and then placed his
hand in the front of his shorts. He then entered the mall. Meredith came out about an
hour later, carrying several large shopping bags, which he placed in the cab of the truck.
He reached into his shorts again and placed something in the bed of the truck, after which
he returned home.
       2. Execution of the Warrant
       Sheriff’s deputies executed the warrant immediately after it was issued. At the
Whittier house where Meredith resided with his mother,1 deputies found a small
container in the living room holding 1.31 grams of methamphetamine, a rifle and some
ammunition, a paper plate with .58 grams of methamphetamine on it, a small digital scale
with a white residue on the plate, two small plastic bags containing a total of 4.68 grams
of methamphetamine and $2,738 in cash. In Meredith’s truck deputies found two boxes
of plastic sandwich bags, a piece of paper entitled “owe sheet,” a pair of brass knuckles
and a receipt for payment to the storage facility. In the motor home deputies found a
1
       Meredith presented evidence at trial that he had not been living at the house, but
this evidence is not relevant to our analysis.

                                              3
small digital scale covered with a white residue and marijuana. At the storage locker
deputies found a container holding 2.31 grams of methamphetamine, a shoe box
containing .12 grams of methamphetamine, some documents bearing Meredith’s name
and two bullet-proof vests they determined to be at least 10 years old. Meredith himself
was searched after his arrest. He was carrying $800 in cash but no methamphetamine.
       Meredith was released on bail after his arrest. A week later, on December 1, 2009,
Detective Arakawa and Deputy Ted Cariasco saw Meredith standing next to his truck and
spoke to him. Arakawa saw Meredith throw something on the ground and told Meredith
to put his hands on the patrol car. Arakawa searched Meredith and found a glass pipe and
.87 grams of methamphetamine in a plastic bag in Meredith’s pocket. Arakawa found on
the ground a number of unused one and one-half by one and one-half inch plastic
jeweler’s bags commonly used to package drugs for sale.2
       3. The Information
       Based on the seized items Meredith was charged with possession of a firearm by a
felon (former Pen. Code § 12021, subd. (a)(1)3 (now § 29800, subd. (a)) (count 1)),
possession of ammunition by a felon (former § 12316, subd. (b)(1) (now § 30305)
(count 2)), possession of a deadly weapon (brass knuckles) (former § 12020, subd. (a)(1)
(now § 21810) (count 3)), possession for sale of a controlled substance (Health & Saf.
Code, § 11378 (count 4)) and possession of body armor (former § 12370, subd. (a) (now
§ 31360 (count 5)). The information further specially alleged Meredith had previously
suffered one prior serious felony conviction within the meaning of the “Three Strikes” law
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), one prior conviction for possession for sale
of a controlled substance (Health & Saf. Code, § 11370.2, subd. (c)) and had served two
prior prison terms for a felony (§ 667.5, subd. (b).)



2
       According to Detective Arakawa, he found between 50 and 100 small bags on the
ground. Deputy Cariasco remembered seeing only a few bags. The bags were not
preserved for evidence; neither were they photographed.
3
       Statutory references are to the Penal Code unless otherwise indicated.

                                              4
       The possession for sale count was amended before trial to add a firearm
enhancement (§ 12022, subd. (c)). In addition, the People filed a second felony complaint
against Meredith alleging one count of possession of a controlled substance (Health & Saf.
Code, § 11370, subd. (a)) based on his second arrest while on bail, which was included as
count 6 in an amended information.
       4. The Motion To Suppress
       Meredith initially moved to quash the search warrant and to suppress the evidence
seized pursuant to the warrant. (§ 1538.5, subd. (a)(1)(B).) The trial court denied the
motion, citing Detective Arakawa’s statement he had observed Meredith in the motor
home handling a bag that appeared to contain methamphetamine or cocaine. Meredith
then moved to traverse the warrant,4 challenging Arakawa’s claim he had seen Meredith
handling drugs inside the motor home from a distance of 150 feet. In scheduling an
evidentiary hearing on the motion to traverse, the trial court advised counsel the hearing
would be conducted in camera. Meredith filed additional briefing protesting the decision
to conduct the hearing in camera on the ground the affidavit in support of the warrant had
not been sealed and he was not challenging statements attributed to the confidential
informants or seeking to learn their identity. In support of the motion Meredith submitted
a declaration stating he had not driven the motor home in the three days before his arrest
and the vehicle had been parked on the street with blinders covering the front windshield
during that time. His mother and a neighbor confirmed these statements in separate
declarations. Meredith also submitted photographs of the motor home without the
blinders to demonstrate the difficulty a passerby would have seeing into the vehicle.5


4
       A motion to quash challenges the facial validity of the warrant. A motion to
traverse attacks the underlying veracity of the statements made on the face of the search
warrant application (sometimes called a “subfacial” challenge). (People v. Heslington
(2011) 195 Cal.App.4th 947, 958.)
5
      Meredith also challenged Detective Arakawa’s affidavit for omitting any mention
of Meredith’s activities on the night he was followed to the shopping mall. According to
Meredith, his mother worked for J.C. Penney and he accompanied her on the employees’
shopping night in anticipation of the holidays. To help his mother, he then carried the

                                             5
       The evidentiary hearing was conducted on December 7, 2010. The trial court
denied Meredith’s renewed objection to a closed hearing, ruling the existence of
confidential informants required the court to conduct the hearing in camera to assess the
ultimate showing of probable cause. The court pointedly rejected the suggestion by
Meredith’s counsel that an in camera hearing would not adequately protect her client’s
interests and declined to open the hearing on issues unrelated to the informants.
       Detective Arakawa and his supervisor, Lieutenant James Tatreau, attended the
hearing and were questioned by the court. After the hearing the court denied the
suppression motion, announcing there had been probable cause to issue the warrant and
the affidavit did not contain material omissions or misstatements. The transcript of the
hearing was sealed.
       5. Trial
       Lieutenant Tatreau, rather than Detective Arakawa, testified at trial regarding the
surveillance conducted of Meredith. Tatreau testified he saw Meredith’s brother drive
Meredith to the storage unit and on several occasions saw Meredith enter the motor home
parked outside the Whittier residence. On the evening of November 23, 2009, a week
into the surveillance, Tatreau watched with binoculars from a distance of approximately
50 feet as Meredith entered the dark motor home with a flashlight. Aided by the
flashlight, Tatreau testified he saw Meredith hold up a “gallon size zip-top bag containing
five or six racquetball-size objects that appeared to be a white substance resembling
methamphetamine or cocaine.” Tatreau further testified he was alone on the surveillance
that night but relayed information about Meredith’s actions to Arakawa by portable radio.
       The next day Tatreau led the team conducting the search of the house and storage
unit pursuant to the warrant. As described above, the search yielded multiple small
amounts of methamphetamine, a small amount of marijuana, two small scales covered
with a white residue, a sheet of paper listing debts (referred to by deputies as a “pay-owe”
sheet), some sandwich-sized foldover bags, a rifle and ammunition, a pair of brass

large shopping bags to his truck. Meredith contended Arakawa intentionally omitted this
information from the affidavit to make Meredith’s activities look suspicious.

                                             6
knuckles and $2,738 in cash. An additional $800 in cash was found in Meredith’s
possession, but no methamphetamine. Meredith’s mother, who owned the house, was
home at the time of the search. Although she initially claimed she and Meredith were the
only ones living in the home, she testified her older son and granddaughter also lived
there and that the gun and ammunition belonged to her older son.
       Detective Arakawa also testified during the People’s case but was asked no
questions about the surveillance. He testified solely about Meredith’s second arrest while
on bail, during which Meredith was found in possession of a small amount of
methamphetamine, a glass pipe and a number of small plastic bags of the type used to
package illicit drugs for sale.
       Sergeant Don Manumaleuna testified as an expert witness on drug sales.
According to Manumaleuna, the minimum usable amount of methamphetamine is about
.02 grams; about half a gram will yield 20 doses, which will last a typical user half a day
although individual tolerances vary based on body size and length of use. Approximately
80 to 90 percent of the time, methamphetamine sellers also use the drug. Nine grams of
methamphetamine—the cumulative amount found during the search—is worth about
$360. Sellers use scales to weigh the product before packaging it in small plastic bags.
Based on the amount of methamphetamine found, the cash, the rifle, the scales, the
plastic bags and the pay-owe sheet, Manumaleuna opined the methamphetamine had been
possessed for sale.
       Meredith did not testify. One of his friends testified Meredith had been staying at
his house several nights a week. Another testified he had not seen Meredith at the
Whittier house the night Lieutenant Tatreau testified he had seen Meredith in the motor
home. Meredith’s brother, James, testified Meredith had not been living at the house and
that James had been holding the rifle for a friend, to whom the weapon was registered.
Because James had recently moved back to California, many of the possessions in the
storage unit were his; and several people had keys to the unit. Other witnesses, including
a neighbor, testified the motor home’s curtains and sunscreen were always in place and
had been in place when the search warrant was executed.

                                             7
       The defense called Detective Arakawa to testify concerning the surveillance.
Under limitations imposed by the trial court as to questions about his location, Arakawa
testified he had observed the motor home from a distance of 150 feet. He denied
speaking with Lieutenant Tatreau by radio and stated they had been able to converse
directly because they were within hearing range of each other, with Tatreau being slightly
closer to the motor home than he was.
       6. Verdicts and Sentencing
       At the close of testimony the trial court granted Meredith’s motion under
section 1118.1 in part, striking the personal use of a firearm enhancement on the
possession-for-sale count. The court also granted the People’s motion to dismiss the
possession-of-body-armor count.
       The jury convicted Meredith of possession of ammunition by a felon (count 2),
possession of a controlled substance for sale (count 4) and possession of a controlled
substance (count 6). After deliberating for more than two days, the jury was unable to
reach a verdict on the remaining counts; and the court declared a mistrial on those counts.
The trial court ruled in Meredith’s favor on a civil forfeiture proceeding and ordered the
money returned.
       Meredith stipulated to his prior felony convictions, and the court dismissed the
strike allegation in the interest of justice. Meredith was then sentenced to a state prison
term of four years, consisting of the upper term of three years on count 2, plus one year
for the prior prison term enhancement, and concurrent four-year terms on counts 4 and 6.
He was awarded two days of presentence custody credit.6
                                     CONTENTIONS
       Meredith contends the court improperly denied him an evidentiary hearing on his
motion to traverse the warrant and denied his constitutional rights by conducting the
hearing in camera. He also contends the trial court erred by failing to instruct the jury on
the lesser included offense of simple possession of methamphetamine on count 4 and

6
       Meredith contends, and the People concede, that he is entitled to three days of
presentence custody credit.

                                              8
should have given a unanimity instruction to ensure members of the jury agreed on the
basis for the possession for sale count. Meredith also seeks certain sentencing
corrections.
                                       DISCUSSION
   1. The Trial Court Improperly Deprived Meredith of a Franks Hearing on the
      Motion To Traverse the Warrant
           a. The trial court erred by proceeding with an in camera hearing
       The warrant clause of the Fourth Amendment requires, absent certain exceptions
not applicable here, that police obtain a warrant from a neutral and disinterested
magistrate before commencing a search. A warrant may not issue unless there is
probable cause, as typically set forth in the warrant affidavit, to justify the search.
Probable cause is established when, considering the totality of the circumstances, there is
sufficient evidence to cause a reasonably prudent person to believe that a search will
uncover evidence of a crime. (Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct.
2317, 76 L.Ed.2d 527]; see People v. Kraft (2000) 23 Cal.4th 978, 1040 [“[t]he question
facing a reviewing court asked to determine whether probable cause supported the
issuance of a warrant is whether the magistrate had a substantial basis for concluding a
fair probability existed that a search would uncover wrongdoing”].)
       In Franks, supra, 438 U.S. 154 the Supreme Court held, when a defendant
establishes by a preponderance of the evidence that an affidavit used to obtain a search
warrant contained perjury or statements made with reckless disregard for the truth, the
court must determine whether the remaining content of the affidavit is sufficient to
establish probable cause. If not, “the search warrant must be voided and the fruits of the
search excluded to the same extent as if probable cause was lacking on the face of the
affidavit.” (Id. at p. 156.)
       To establish the right to an evidentiary hearing under Franks, the defendant must
make a substantial preliminary showing the affidavit contains omissions or misstatements
that were either intentionally made, or made with a reckless disregard for the truth, which
are material to the determination of probable cause: “There is, of course, a presumption


                                               9
of validity with respect to the affidavit supporting the search warrant. To mandate an
evidentiary hearing, the challenger’s attack must be more than conclusory and must be
supported by more than a mere desire to cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof. . . . Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished. . . . Allegations of negligence or innocent
mistake are insufficient. . . . [I]f these requirements are met, and if, when material that is
the subject of the alleged falsity or reckless disregard is set to one side, there remains
sufficient content in the warrant affidavit to support a finding of probable cause, no
hearing is required. On the other hand, if the remaining content is insufficient, the
defendant is entitled . . . to his hearing.” (Franks, supra, 438 U.S. at pp. 171-172,
fn. omitted; accord, People v. Panah (2005) 35 Cal.4th 395, 456.)
       Presented with Meredith’s motion to traverse the warrant, which was accompanied
by three declarations and photographs challenging Detective Arakawa’s sworn description
of his surveillance of the motor home and his omission of Meredith’s holiday shopping trip
to J.C. Penney with his mother,7 the trial court informed counsel it would not conduct a
contested evidentiary hearing but would hear the matter in camera because the unsealed
affidavit cited information provided by two confidential informants. The court declined to
open the hearing, even after Meredith’s counsel objected she was not challenging the
identity of the informants and was instead challenging Arakawa’s statement Meredith had
been seen handling what appeared to be methamphetamine. According to the court, if

7
          “Omissions are ‘material’ if the affidavit was rendered substantially misleading,
i.e., if there was a ‘substantial probability [the omitted facts] would have altered a
reasonable magistrate’s probable cause determination.’ [Citation.] If the asserted
omissions are deemed immaterial and the affidavit on its face supports probable cause,
the warrant usually stands. [Citation.] [¶] If a material fact is reasonably omitted, no
sanction is imposed. [Citation.] If a material fact is negligently omitted, the reviewing
court should view the affidavit as if it had included that fact and retest it for probable
cause. [Citation.] Lastly, if a fact is recklessly omitted or omitted with an intent to
mislead, the warrant should be quashed, regardless of whether the omission is ultimately
deemed material.’” (People v. Carpenter (1997) 15 Cal.4th 312, 363.)

                                              10
information from a confidential informant constituted part of the showing of probable
cause, the court was required to proceed in camera to determine whether probable cause
existed notwithstanding the asserted misstatements. The court chastised Meredith’s
counsel for suggesting its own examination of the government’s witnesses would be
inadequate to protect Meredith’s rights.
       This was error. As urged by the People, we construe the court’s statements to
mean it believed it was required to proceed under Hobbs, supra, 7 Cal.4th 948, and not
under Franks. Hobbs governs “[w]hen a defendant seeks to quash or traverse a warrant
where a portion of the supporting affidavit has been sealed,” typically because of
information contained in the affidavit relating to a confidential informant. (People v.
Galland (2008) 45 Cal.4th 354, 364, citing Hobbs, at p. 963, italics added.) Under Hobbs
the court is required first to determine whether there are sufficient grounds for
maintaining the confidentiality of the informant’s identity; if so, the court should then
determine whether the existing sealing of the affidavit (or any portion thereof) “is
necessary to avoid revealing the informant’s identity.” (Hobbs, at p. 972.) Once the
affidavit is found to have been properly sealed, 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
pursuant to the warrant’ (if the defendant has moved to quash the warrant) or ‘whether
the defendant’s general allegations of material misrepresentations or omissions are
supported by the public and sealed portions of the search warrant affidavit, including any
testimony offered at the in camera hearing’ (if the defendant has moved to traverse the
warrant).” (Galland, at p. 364, quoting Hobbs, at pp. 974, 975.) “The prosecutor may be
present at the in camera hearing; the defendant and defense counsel are to be excluded
unless the prosecutor elects to waive any objection to their presence. However, defense
counsel should be afforded 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.” (Galland, at p. 364.)

                                             11
       Here, the affidavit not having been sealed and there having been no factual
challenge to the information provided by the informants, Hobbs did not apply. Instead,
the court should simply have assessed whether Meredith was entitled to a Franks hearing
under the standards articulated in that case.
       Notably, the People do not attempt to justify the procedure used by the trial court
in this instance as a pre-Franks hearing, which a court may use to test the need for further
inquiry. As our colleagues in Division Five of this court have explained, “the standard
for compelling pre-Franks hearing discovery is lower than whether to allow the hearing
on the merits of the suppression of evidence motion.” (People v. Estrada (2003)
105 Cal.App.4th 783, 791.) Typically, such a procedure is employed in cases involving
confidential informants. (See, e.g., People v. Luttenberger (1990) 50 Cal.3d 1, 21-24
(Luttenberger); Estrada, at pp. 790-791.) “‘To justify in camera review and discovery,
preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence
casting some reasonable doubt on the veracity of material statements made by the affiant.
[Citations.] . . . Thus, before an in camera review may be ordered, the defendant must
raise some reasonable doubt regarding either the existence of the informant or the
truthfulness of the affiant’s report concerning the informant’s prior reliability or the
information he furnished.’” (Estrada, at pp. 791-792, quoting Luttenberger, at pp. 22-23,
citations omitted, italics added; see also People v. Navarro (2006) 138 Cal.App.4th 146,
165 [Luttenberger “established a discovery procedure where a defendant seeks to mount
a Franks challenge to a search warrant obtained through information from a confidential
informant”].)
       Proceeding under Luttenberger in this case, however, was not an option because
Meredith did not challenge the identity or reliability of a confidential informant. In the
context of a pre-Franks hearing not involving a challenge to a confidential informant, the
Seventh Circuit recently explained, “A district court that is in doubt about whether to
hold a Franks hearing has discretion to hold a so-called ‘pre-Franks’ hearing to give the
defendant an opportunity to supplement or elaborate on the original motion. Though
permissible, this procedural improvisation is not without risk, as the sparse case law

                                                12
indicates. In such a pre-Franks hearing, the natural temptation for the court will be to
invite and consider a response from the government. However, the court should not give
the government an opportunity to present its evidence on the validity of the warrant
without converting the hearing into a full evidentiary Franks hearing, including full
cross-examination of government witnesses.” (United States v. McMurtrey (7th Cir.
2013) 704 F.3d 502, 504 (McMurtrey).)
       In McMurtrey the defendant sought a Franks hearing based on inconsistencies
between two police officer affidavits asserting probable cause with respect to neighboring
houses: “On the critical issue of which of two houses should be searched, the affidavits
contradicted each other.” (McMurtrey, supra, 704 F.3d at p. 505.) Instead of proceeding
with a full Franks hearing, the trial court held a “truncated pre-Franks hearing” and
allowed the government to offer additional evidence to explain the discrepancies in the
affidavits but prevented the defense from cross-examining the government witnesses and
denied the motion for a Franks hearing. (Ibid.) The Seventh Circuit reversed. It
concluded the trial court had acted within its discretion in holding a pre-Franks hearing,
but noted “[t]he problem arises . . . when a ‘pre-Franks’ hearing becomes a vehicle for
the government to present new evidence to explain the discrepancies identified by the
defense, yet the defense is not given a full opportunity to challenge or rebut that
evidence. Such government evidence is appropriate for the Franks hearing itself, where
the defense must have the opportunity for full cross-examination.” (Id. at p. 509; see also
United States v. Harris (7th Cir. 2006) 464 F.3d 733, 739 [reversing denial of Franks
hearing after allowing government to bolster its affidavits: “The opportunity to cross-
examine an officer who has intentionally or recklessly made false statements to procure a
search warrant in an important aspect of a Franks hearing”].)
       We similarly reject the notion that, outside the scope defined by Luttenberger and
Hobbs, a trial court can invite the People to supplement their challenged probable cause
showing but then deny the defendant the opportunity to cross-examine the basis for that
showing. In this case, Meredith submitted declarations that raised a reasonable doubt
about the veracity of Detective Arakawa’s description of the surveillance. Even

                                             13
assuming the court believed it was conducting an appropriate pre-Franks inquiry, it was
error to close the hearing, take new evidence (untested by the defense) and then deny a
full evidentiary hearing.
          b. Meredith met the standard for an evidentiary hearing under Franks
       We review denial of a Franks motion de novo. (People v. Panah, supra,
35 Cal.4th at p. 457.) Based on the declarations and photographs submitted by Meredith,
we have no question he met the standard for an evidentiary hearing under Franks. Each
of the declarations (one from Meredith; one from his mother; and one from a neighbor)
stated the windows of the motor home had been screened on the night of the surveillance.
In addition, through photographs taken at various distances from the motor home with the
windows uncovered, Meredith challenged the physical possibility of a person located
150 feet away—even when using binoculars—being able to view someone inside the
motor home handling a plastic bag the observer could reliably conclude contained a drug-
like substance. The judge who ruled on Meredith’s facial challenge to the affidavit’s
showing of probable cause expressly relied on Detective Arakawa’s assertion he saw
Meredith handling a bag containing balls of drug-like substances, thus making this the
critical component of the probable cause showing. (See, e.g., McMurtrey, supra,
704 F.3d at p. 513 [“the apparently false information went to the heart of probable cause
for the search”].)
       Absent Detective Arakawa’s description of Meredith handling what appeared to be
a controlled substance, the remaining portions of the affidavit, including the information
allegedly provided by confidential informants, failed to establish probable cause. (See
Franks, supra, 438 U.S. at p. 172.) Of the two confidential informants described, only
one is labeled “reliable.” The affidavit, moreover, contains no information about why
that informant, let alone the one who did not carry the label, should have been considered
reliable in this instance. At most the affidavit asserts both informants demonstrated
familiarity with (in the eyes of Arakawa, an experienced officer) firearms and drug sales
and loosely corroborate each other’s hearsay allegations against Meredith. The affidavit
fails to establish either informant’s personal knowledge supporting the accusation

                                            14
Meredith was engaged in supplying street level drug dealers with methamphetamine and
had been concealing the drugs in the bed of his pickup truck. (See People v. Terrones
(1989) 212 Cal.App.3d 139, 148-149 [although informants had no track record of
reliability, “the fact that the basis of their knowledge was personal observation, ‘may
compensate for a less than conclusive demonstration of [their] credibility’”]; People v.
French (2011) 201 Cal.App.4th 1307, 1317 [“the affidavit does not specify any basis for
CRI-1’s assertion that defendant . . . [was] involved in narcotics sales and does not state
that any of the information is based on the informant’s personal observations”].) We
acknowledge, of course, there is no “rigid formula” to be applied by a court in weighing
whether to credit information provided by an informant, but the affidavit must
demonstrate a balance between the informant’s reliability and the basis of his or her basis
of knowledge. (French, at p. 1316, discussing Illinois v. Gates, supra, 462 U.S. at
p. 233.)8 The conclusory assertions contained in Arakawa’s affidavit, like those in
French, are less than adequate.
       Moreover, both the facts gleaned from the informants and Detective Arakawa’s
observations during the surveillance apart from the events he purportedly viewed through
binoculars from 150 feet away lack sufficient detail and character to distinguish them
from mere “pedestrian facts” found inadequate by other courts. (See People v. Gotfried
(2003) 107 Cal.App.4th 254, 263-264 [“[c]ourts take a dim view of the significance of
‘pedestrian facts’ such as a suspect’s physical description, his residence and vehicles”];


8
        “‘If for example, a particular informant is known for the unusual reliability of his
predictions of certain types of criminal activities in a locality, his failure, in a particular
case, to thoroughly set forth the basis of his knowledge surely should not serve as an
absolute bar to a finding of probable cause based on his tip. [Citation.] Likewise, if an
unquestionably honest citizen comes forward with a report of criminal activity—which if
fabricated would subject him to criminal liability—we have found rigorous scrutiny of
the basis of his knowledge unnecessary. [Citation.] Conversely, even if we entertain
some doubt as to an informant’s motives, his explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed firsthand, entitles his tip
to greater weight than might otherwise be the case.’” (People v. French, supra,
201 Cal.App.4th at p. 1316, quoting Illinois v. Gates, supra, 462 U.S. at pp. 233-234.)

                                              15
accord, French, supra, 201 Cal.App.4th at pp. 1319-1320.) Although information from
sources with no record of reliability may elevate seemingly innocent behavior to a
suspicious level (see Gotfried, at p. 264), Arakawa’s observations of Meredith—reaching
into the front part of his pants (that is, his pockets), placing items in the bed of his pickup
truck and retrieving them later, visiting a storage unit with his brother and meeting his
mother at a shopping mall—hardly rise to the level of probable cause in the absence of
the crucial observation of Meredith handling a bag of apparent methamphetamine in his
motor home.
       Courts agree “[i]t is not easy for a defendant to make the required preliminary
showing under Franks.” (McMurtrey, supra, 704 F.3d at p. 511; accord, People v.
Estrada, supra, 105 Cal.App.4th at p. 791.) “The defendant must include with his
allegations of material and intentional or reckless falsehoods or omissions ‘an offer of
proof.’ [Citations.] It is well established that conclusory allegations are not enough . . .
[citations], but it is equally true that the defendant need not come forward with
conclusive proof of deliberate or reckless falsity. Otherwise, there would be no need for
a Franks hearing.” (McMurtrey, at p. 511.) In short, Meredith met his burden of
establishing a right under Franks to an evidentiary hearing to dispute Detective
Arakawa’s statements in the affidavit.
           c. The transcript of the in camera hearing must be disclosed and the defense
              allowed to cross-examine the officers at the renewed Franks hearing
       Meredith contends the transcript of the in camera hearing, at which Detective
Arakawa and Lieutenant Tatreau defended the affidavit’s showing of probable cause,
must be disclosed. With the exception of the portion of the hearing addressing the
identity of one of the informants, we agree.
       Although it appears the court failed to swear the witnesses, the statements made at
this hearing are relevant to the trial court’s renewed consideration on remand of the
veracity of Detective Arakawa’s sworn affidavit. In his affidavit Arakawa asserted the
facts he set forth were based on his own personal knowledge. At the hearing, however,
Arakawa admitted substantial portions of the affidavit, including the information received


                                               16
from the confidential informants and the surveillance of Meredith’s trips to the storage
facility and the shopping mall, were in fact based on information he was told by
Lieutenant Tatreau. While it has long been accepted for law enforcement officers to rely
on information they receive from other sources (see United States v. Davis (9th Cir.
1983) 714 F.2d 896, 899; United States v. Ventresca (1965) 380 U.S. 102, 110-111
[85 S.Ct. 741, 13 L.Ed.2d 684]), it is not acceptable for officers to swear they have
personal knowledge of facts when their knowledge is second-hand. As the Ninth Circuit
pointedly noted in Davis, “This entire problem could have been avoided if [the affiant
officer] had simply rewritten the affidavit to indicate that he was relying on his officers
who had personally interviewed the informants.” (Davis, at p. 899.)
       In addition, although Lieutenant Tatreau was present during the in camera hearing
and responded to questions posed by the court about one of the confidential informants
described in Detective Arakawa’s affidavit,9 Tatreau did not respond to the court’s
questions about the surveillance of the motor home. Arakawa told the court he had
personally observed Meredith from a distance of 150 feet handling what appeared to be a
controlled substance while inside the motor home and denied the existence of any
blinders or screens on the front window. Tatreau said nothing on this point, even to
support Arakawa’s account. Nonetheless, Tatreau later testified at trial he had observed
the same incident with binoculars at a distance of only 50 feet. He also testified he was
in contact with Arakawa during the surveillance by radio but Arakawa had not been
present. The prosecution did not call Arakawa to clarify this point, but, called as a hostile
witness by the defense, Arakawa stated he had indeed been in a location 150 from the
motor home and had observed the incident through binoculars.




9
       Lieutenant Tatreau’s responses to the court’s questioning on this point are
confusing. With respect to the single informant identified by Tatreau, he first
acknowledged to the court the informant, a felon, had no previous record of reliability.
Tatreau then seemed to contradict himself and assure the court he had in fact had
experience with the informant prior to receiving the information about Meredith.

                                             17
       While we hesitate to infer intentional misrepresentations by either of these officers
and these statements are not directly relevant to the issue of probable cause for the
warrant, it is also impossible to ignore this testimony. On remand, the court should allow
the defense the opportunity to impeach the officers with their prior inconsistent
statements to the extent their testimony at the Franks hearing merits such impeachment.
       After completion of the evidentiary hearing, the court should independently
determine, with any false material set aside, whether the affidavit’s remaining content is
sufficient to establish probable cause. (See Franks, supra, 438 U.S. at p. 156; People v.
Luttenberger, supra, 50 Cal.3d at p. 10.) To the extent any of Detective Arakawa’s
misstatements are determined to have been intentional or made with reckless disregard
for the truth and the remaining portions of the affidavit are insufficient, the court should
not invoke the good faith exception to the exclusionary rule described in United States v.
Leon (1984) 468 U.S. 897 [104 S.Ct. 3405, 82 L.Ed.2d 677] and People v. French, supra,
201 Cal.App.4th at pages 1323 to 1325. (See Leon, at p. 914, fn. 12 [“‘it would be an
unthinkable imposition upon [the magistrate’s] authority if a warrant affidavit, revealed
after the fact to contain a deliberately or recklessly false statement, were to stand beyond
impeachment,’” quoting Franks, at p. 165].)
       2. The Trial Court Should Have Instructed the Jury on the Lesser Included
          Offense of Possession
       A trial court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004)
32 Cal.4th 73, 115.) This obligation includes the duty to instruct on a lesser included
offense if the evidence raises a question whether the elements of the lesser included
offense, but not the greater offense, are present. (Ibid.; People v. Breverman (1998)
19 Cal.4th 142, 154.) The existence of “‘any evidence, no matter how weak’” will not
justify instructions on a lesser included offense. There must be “‘evidence that a
reasonable jury could find persuasive.’” (Breverman, at p. 162.) In addition, the failure


                                             18
to instruct on a lesser included offense in noncapital cases is “at most, an error of
California law alone” requiring reversal only when “an examination of the entire record
establishes a reasonable probability that error affected the outcome.” (Id. at p. 165.)
       Simple possession of a controlled substance is a lesser included offense of
possession for sale of the same controlled substance. (People v. Oldham (2000)
81 Cal.App.4th 1, 16; People v. Saldana (1984) 157 Cal.App.3d 443, 454-455.) In
Saldana, relied on by Meredith here, an officer testified the defendant had been found
lying on a bed and reached into a headboard where 18 balloons of heroin were found.
(Saldana, at p. 450.) It was later determined the defendant shared the room with his
mother and the headboard where the heroin was found belonged to her. (Ibid.) The
defendant’s brother, a known user and seller of heroin, was found in the basement of the
same home and was determined to have 135 puncture wounds on his arms and to be
under the influence of heroin. (Id. at p. 451.) As here, the People’s evidence was purely
circumstantial on the issue of the defendant’s intent to sell, consisting of an expert’s
opinion based on various factors. (Saldana, at p. 457.) Posing the question whether there
was evidence from which a jury composed of reasonable persons could have concluded
the defendant possessed the heroin but did not have the intent to sell it (ibid.), the court
concluded the defendant was entitled to the lesser included instruction because there was
direct evidence to prove constructive possession (since the defendant exercised joint
dominion and control over the bedroom in which the heroin was found) but only
conflicting circumstantial evidence of possession for sale. (Id. at pp. 455, 457.)
       The facts before us are similar. There was no evidence Meredith ever attempted to
sell methamphetamine to anyone or possessed any of the drug in a form packaged for
sale. His brother and a friend testified Meredith was a user and had spent time in a
rehabilitation program. The discovery during the search of a scrap of tin foil covered in
residue proved someone (possibly Meredith) in the house had used the drug in the recent
past. When he was arrested the week after the house search, he had in his possession
only a small amount of methamphetamine (.87 grams) and a pipe for smoking the drug.
Further, although a cumulative amount of nine grams was found in various locations

                                              19
through the house, motor home and storage unit—capable of approximately 400 doses of
.02 grams each with a street value of $360—Sergeant Manumaleuna acknowledged nine
grams would last a heavy user no more than a week.
       We recognize, of course, Sergeant Manumaleuna also testified 80 to 90 percent of
methamphetamine sellers use the drug. In testifying to his opinion the methamphetamine
had been possessed for sale, Manumaleuna relied on the amount of methamphetamine,
the “pay-owe” sheet found in the motor home, the rifle and ammunition, the plastic bags
found in different locations, the cash and the two digital scales with methamphetamine
residue on them. But, as Meredith points out, the factual assumptions made by
Manumaleuna were controverted. For instance, Lieutenant Tatreau admitted Meredith’s
pay-owe sheet looked unlike any he’d ever seen before and speculated it had been written
in code; Meredith’s brother testified he was keeping the rifle for a friend and it did not
belong to Meredith; Meredith’s mother testified others in the house, including her
granddaughter, had used methamphetamine; the granddaughter testified
methamphetamine users routinely employ scales to weigh their purchases to make sure
they were not being cheated; and two of the boxes of plastic bags relied on by
Manumaleuna contained the foldover, sandwich-type bags, which no one testified are
used for drug sales.
       On this record, therefore, a reasonable jury could have concluded the
methamphetamine found in the search was for the personal consumption of Meredith and
his family or friends, and it is reasonably probable the omission of the instruction on the
lesser included offense of possession of methamphetamine base affected the outcome of
the trial. (See People v. Breverman, supra, 19 Cal.4th at p. 178; People v. Blair, supra,
36 Cal.4th at p. 745.) Meredith was entitled to have the jury decide the issue. (See
People v. Burns (2009) 172 Cal.App.4th 1251, 1258.)
       3. The Court May Have Erred in Failing To Give a Unanimity Instruction; On
          Remand, the Instruction Should Be Given As Requested
       A defendant is entitled to a verdict in which all 12 jurors concur beyond a
reasonable doubt as to each count charged. (People v. Russo (2001) 25 Cal.4th 1124,


                                             20
1132.) “When an accusatory pleading charges the defendant with a single criminal act,
and the evidence presented at trial tends to show more than one such unlawful act, either
the prosecution must elect the specific act relied upon to prove the charge to the jury, or
the court must instruct the jury that it must unanimously agree that the defendant
committed the same specific criminal act.”10 (People v. Melhado (1998) 60 Cal.App.4th
1529, 1534; accord, People v. Maury (2003) 30 Cal.4th 342, 422 [“[a] requirement of
jury unanimity typically applies to acts that could have been charged as separate
offenses”]; People v. Mota (1981) 115 Cal.App.3d 227, 231 [“‘“where there are multiple
acts placed before a jury, each being a separate chargeable offense in itself, the
prosecution must elect the act on which the charge will stand,” or otherwise “the jurors
[might] range over the evidence at will and pick out any one of the offenses upon which
to found its verdict”’”].) In cases involving alleged possession of controlled substances
for sale, a unanimity instruction is required when: (1) “actual or constructive possession
is based upon two or more individual units of contraband reasonably distinguishable by a
separation in time and/or space”; (2) “there is evidence as to each unit from which a
reasonable jury could find that it was solely possessed by a person or persons other than
the defendant”; and (3) the People have not elected to rely on only one of the individual
units. (People v. King (1991) 231 Cal.App.3d 493, 501-502 (King); see also People v.
Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 (Castaneda) [factors to be considered
in determining when unanimity instruction is necessary are whether defendant raised
separate defenses to separate contraband items and whether there is conflicting evidence
over ownership of such items].) If a case requires use of the unanimity instruction, the
court must give it sua sponte. (See People v. Hefner (1981) 127 Cal.App.3d 88, 97.)



10
       CALCRIM No. 3500 provides: “The defendant is charged with < insert
description of alleged offense > [in Count ---] [sometime during the period of---- to ----].
[¶] The People have presented evidence of more than one act to prove that the defendant
committed this offense. You must not find the defendant guilty unless you all agree that
the People have proved that the defendant committed at least one of these acts and you all
agree on which act (he/she) committed.”

                                             21
       The defendant in King was convicted of possession for sale after
methamphetamine was found at two different locations in her home—a purse found in
the living room and inside a decorative statue in the kitchen. (King, supra,
231 Cal.App.3d at pp. 497-498.) The evidence showed that the purse belonged to
someone else; the home had multiple occupants; and the defendant’s boyfriend testified
the drugs found in the statue belonged to him. (Id. at pp. 497-500.) The court of appeal
held the unanimity instruction was required because the two units of methamphetamine
had been found in separate parts of the house and there was evidence sufficient to lead a
reasonable jury to believe it had belonged to another person. (Id. at pp. 501-502.)
       Similarly, in Castaneda, the court concluded a unanimity instruction was required
because the defendant’s conviction for possession of heroin could have been based upon
either constructive possession of heroin found on his television set or actual possession of
heroin found in his pocket at the sheriff’s station. (Castaneda, supra, 55 Cal.App.4th at
pp. 1070-1071.) The court found the acts of possession were distinct, and the defendant
had provided separate defenses to each act: The defendant’s son testified the heroin
found on the television belonged to him; and defense counsel argued the heroin found in
the defendant’s pocket was planted or otherwise fabricated. (Id. at p. 1071.) Castaneda
concluded the trial court had a sua sponte duty to give the jury a unanimity instruction on
which act or acts constituted the offense of possession. (Ibid.)
       The facts in this case fall short of the facts in King and Castaneda. Certainly,
there was evidence of possible access by other people (including at least one other
methamphetamine user) to the five locations in which the methamphetamine was found.
No one who testified, however, claimed to own any portion of the drug. The People
argued the jury could base its verdict on count 4 on the cumulative amount of drugs
found and the drug sale paraphernalia also found in multiple locations. In his defense
Meredith claimed the methamphetamine did not belong to him and had been found in
quantities and under circumstances consistent with use, not sales. We see no reason to
thread the needle on these arguments in light of our conclusion the count must be retried
with an instruction to the jury on the lesser included offense of simple possession. At the

                                            22
same time, the court may instruct the jury with CALCRIM No. 3500 to avoid any
possible jury confusion.
                                      DISPOSITION
       With the exception of Meredith’s conviction for possession of methamphetamine
(count 6), the judgment is reversed. The matter is remanded to the trial court with
directions to set aside its December 7, 2010 order denying Meredith’s motion to traverse
the warrant and to conduct an evidentiary hearing consistent with this opinion and the
requirements set forth in Franks. If, after the hearing, the court denies the motion and the
People elect to retry Meredith on the possession for sale count, at the retrial an instruction
for the lesser included offense of simple possession and a unanimity instruction should be
given. If the court finds the affidavit lacking in probable cause and invalidates the
warrant, Meredith is entitled to a new trial on count 2, as well as count 4.




                                                         PERLUSS, P. J.


       We concur:



                     WOODS, J.



                     ZELON, J.




                                             23
