Filed 6/16/14 P. v. Seidenfaden CA3
                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)


THE PEOPLE,                                                                                  C073002

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM033834)

          v.

CHARLES GERARD SEIDENFADEN, JR.,

                   Defendant and Appellant.




          A jury found defendant Charles Gerard Seidenfaden, Jr., guilty of furnishing
marijuana to a minor. (Health & Saf. Code, § 11361, subd. (b).) The jury deadlocked
and a mistrial was declared on a count of cultivating marijuana. (Health & Saf. Code,
§ 11358.) Imposition of sentence was suspended and defendant was placed on probation
for three years on the condition, among others, that he serve 30 days of incarceration with
credit for one day.
          On appeal, defendant asks this court to review the sealed in camera proceedings
and search warrant affidavit to determine whether the trial court erred in sealing the
affidavit and in denying defendant’s motion to traverse and quash the warrant. We
affirm.



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                                          FACTS1
        In March 2010, 17-year-old S.K. lived in Oroville with her mother, her older
brother, and defendant, who was her mother’s boyfriend. Defendant and S.K.’s mother
started living together when S.K. was in elementary school. Thus, defendant was aware
of S.K.’s age and birthday.
        S.K. testified that she first used marijuana in late 2009 when defendant offered it
to her. Sometime between January and March of 2010, defendant again provided
marijuana to S.K. He simply handed her the marijuana, and he was aware that she was a
minor when he did so.
        A search warrant was executed at S.K.’s residence on the morning of March 25,
2010. Officers discovered that the garage had been converted into a marijuana “grow
room” and that it contained five marijuana plants. Harvested marijuana was found
throughout the house, including S.K.’s bedroom. An officer estimated that there was
enough harvested marijuana to last for three or four months or until the marijuana under
cultivation could be harvested.
        After an advisement and waiver of his constitutional rights, defendant spoke with
one of the searching officers. Defendant never said anything to indicate that he thought
S.K. was an adult. He explained that he would prefer that S.K. and her friends smoke
marijuana at the residence where he could monitor their use. Defendant admitted that all
of the marijuana in the house belonged to him.
                                       DISCUSSION
                       Independent Review of In Camera Proceedings
        Citing People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) and its antecedents,
defendant asks this court to “independently review the sealed in camera proceedings and




1   Our statement of facts is limited to the offense of which defendant was convicted.

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search warrant affidavit” and to “determine whether the trial court erred in sealing the
affidavit . . . and in denying [his] motions to traverse and quash the search warrant.”
Defendant asks this court to reverse the trial court’s denial of the motion to traverse the
warrant if the court determines that the sealed affidavit contains material
misrepresentations or omissions. Defendant also asks that the denial of his motion to
quash the search warrant be reversed if our review of the sealed materials reveals
insufficient probable cause to issue the search warrant. The People agree that review of
the sealed materials for abuse of discretion is proper.
                                        Background
       As noted, defendant’s residence was searched pursuant to a search warrant. In his
statement of probable cause for the warrant, the affiant referred to a “ ‘Confidential
Attachment’ ” supplied by a confidential informant and asked the court to seal the
attachment to protect the informant’s identity.
       Prior to trial, defendant moved for an order to unseal the affidavit. Ultimately,
defendant’s motion was denied, as were his motions to traverse and quash the warrant
and his motion to suppress evidence.
                                          Analysis
       Under Hobbs, “[o]n a properly noticed motion by the defense seeking to quash or
traverse [a] search warrant” where any portion or all 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.” (Hobbs, supra, 7 Cal.4th at
p. 972, fn. omitted.)
       “If the affidavit is found to have been properly sealed, and the defendant has
moved to traverse the warrant, the court should then proceed to determine whether the

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defendant’s general allegations of material misrepresentations or omissions are supported
by the public and sealed portions of the search warrant affidavit . . . . Generally, in order
to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit
included a false statement made ‘knowingly and intentionally, or with reckless disregard
for the truth,’ and (2) ‘the allegedly false statement is necessary to the finding of probable
cause.’ ” (Hobbs, supra, 7 Cal.4th at p. 974.)
       “If the trial court determines that the materials . . . before it do not support
defendant’s charges of material misrepresentation, the court should simply report this
conclusion to the defendant and enter an order denying the motion to traverse.” (Hobbs,
supra, 7 Cal.4th at p. 974.)
       “Similarly, if the affidavit is found to have been properly sealed and the defendant
has moved to quash the search warrant [citation], the court should proceed to determine
whether, under the ‘totality of the circumstances’ presented in the search warrant
affidavit . . . , there was ‘a fair probability’ that contraband or evidence of a crime would
be found in the place searched pursuant to the warrant. [Citations.] In reviewing the
magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset
only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence
supportive of the magistrate’s finding of probable cause, since it is the function of the
trier of fact, not the reviewing court, to appraise and weigh evidence when presented by
affidavit as well as when presented by oral testimony. [Citations.]’ ” (Hobbs, supra,
7 Cal.4th at p. 975.)
       “If the court determines, based on its review of all the relevant materials, that the
affidavit . . . furnished probable cause for issuance of the warrant . . . , the court should
simply report this conclusion to the defendant and enter an order denying the motion to
quash.” (Hobbs, supra, 7 Cal.4th at p. 975.) “In 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 application for possible

                                               4
appellate review.” (Ibid.) On appeal, we review for abuse of discretion. (See id. at
p. 976.)
       Here, defendant asks us to review the trial court’s determinations under Hobbs.
Having reviewed the sealed portion of the search warrant affidavit, we find no abuse of
discretion.
       After noting that the affidavit contained information from four separate
confidential informants, the trial court suggested--and the prosecutor agreed--that only
the fourth confidential informant (CI #4) was worthy of consideration. Our review is
thus limited to CI #4.
       The trial court noted that CI #4 was a citizen informant who had personal
knowledge of the matters attributed to him or her in the affidavit. The court found that CI
#4 was “concerned and rightfully [so]” for his or her “safety” if CI #4 were to be “outed
or revealed”; thus, “the information should stay confidential.” This determination was
well within the trial court’s sound discretion.
       Additionally, the trial court found that the affidavit “does not provide any
evidence of the type contemplated by Hobbs which would assist the defendant in his
traversal motion” and that the affidavit “is certainly not exculpatory. It’s hard to read this
providing any type of evidence that might be exculpatory.” The trial court did not find,
and independent review does not suggest, that the affiant made any false statements,
material misrepresentations, or omissions with respect to CI #4 in applying for the search
warrant.
       Although it did not address the matter expressly, the trial court impliedly credited
the prosecutor’s argument that the affidavit “properly supports the probable cause for the
warrant . . . .” Our independent review supports the trial court’s implied determination.
Therefore, the court properly denied defendant’s motions to traverse and quash the search
warrant.



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                                    DISPOSITION
     The judgment is affirmed.


                                        BLEASE    , Acting P. J.


We concur:


        ROBIE                    , J.


        DUARTE                   , J.




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