Filed 7/24/13 P. v. Cass CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                              B240039

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. GA082766)
         v.

CLIFTON ASHLEY CASS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Laura F. Priver, Judge. Affirmed.
         Richard L. Fitzer, 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, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Appellant Clifton Ashley Cass appeals from the judgment entered following his
pleas of guilty to count 1 – possession of cocaine base for sale (Health & Saf. Code,
§ 11351), count 3 – possession of an assault weapon (Pen. Code, § 12280, subd. (b)), and
count 7 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) with an
admission he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), following
the denial of a suppression motion (Pen. Code, § 1538.5). The court sentenced appellant
to prison for 10 years 4 months. We affirm the judgment.
                                          ISSUES
       Appellant (1) claims the trial court erroneously denied his motion to traverse the
search warrant, (2) asks this court to review the sealed Hobbs attachment to the search
warrant, and (3) asks this court to review the sealed transcript of the in camera
proceedings pertaining to his Pitchess motion.
                                      DISCUSSION
1. The Trial Court Properly Denied Appellant’s Motion to Traverse the Search
Warrant(s) and Fulfilled Its Hobbs Responsibilities.
       a. Pertinent Facts.1
              (1) Proceedings Prior to the Filing of the Notice of Appeal.
       The nonconfidential record reflects as follows. On March 15, 2011, Judge
Beverly Reid O’Connell issued a search warrant in this case. On March 22, 2011, Judge
Craig Richman issued a second search warrant. On July 25, 2011, appellant filed a
motion to traverse “warrant” and suppress evidence. The motion sought suppression of
all evidence seized from, inter alia, 1967 Park Rose Avenue, Duarte, California, “during
the service of that warrant on March 15, 2011.” (This was apparently appellant’s home
address.)



1
      The facts of the offenses are not pertinent to this appeal. Suffice it to say on
March 15, 2011, appellant committed the above offenses, evidence of which deputies
discovered following a traffic stop.

                                             2
       The memorandum of points and authorities indicated as follows. Based on reports
received in this case, it appeared the People were relying on statements by an
investigating officer, Detective Gabriel Navarro. He swore under penalty of perjury that
he believed appellant was a drug dealer based on observations made following
appellant’s arrest for a traffic violation. When law enforcement personnel stopped
appellant and searched his vehicle, they found cocaine base. Appellant later made
statements which led Navarro to believe appellant was a cocaine dealer and a large
quantity of cocaine would be found in appellant’s home.
       The memorandum then stated, “Not included in the search warrant affidavit was
the quantity of cocaine found on the defendant at the traffic stop. It was in fact .77 gm, a
small quantity, even for a casual user and certainly not enough to raise the suspicions of a
reasonable police officer that it was possessed for sale. [¶] It must be noted that this was
a Hobbs warrant and that a portion of the affidavit has been sealed so that Counsel cannot
determine if probable cause for the search warrant is [shown] therein. The Court is urged
to unseal the balance of the affidavit and review it for such content. [¶] It is the defense
position that if these misstatements were deleted and the truth inserted and the statements
unlawfully seized from [appellant] deleted from the affidavit, there would not have been
sufficient probable cause to support the issuance of the warrant.”
       On July 25, 2011, the court scheduled a hearing for September 1, 2011, on the
motion. On July 26, 2011, the People filed an opposition that asserted that on March 15,
2011, appellant was driving a Cadillac Escalade when he was stopped for a traffic
violation. Los Angeles County sheriff’s deputies recovered “two baggies which
contained what appeared to be rock cocaine along with six empty plastic bags from the
vehicle’s interior.” On March 15, 2011, Navarro prepared a search warrant and Judge
O’Connell signed it. The People argued in the written opposition that the court should
deny the motion because it was based solely upon the unsworn statements of defense
counsel.



                                              3
       On September 1, 2011, the court, Judge Laura F. Priver, presiding, heard the
motion. The court indicated there were two search warrants. Moreover, although the
record is not a model of clarity, fairly read, the record of a colloquy between the court
and appellant’s counsel indicates the warrant issued on March 15, 2011, by Judge
O’Connell was a “non-Hobbs” warrant, there was “Hobbs approval” on the warrant
issued on March 22, 2011, by Judge Richman, and evidence recovered during the
execution of the first warrant led to the issuance of the second warrant.
       After that colloquy, the court (Judge Priver) asked if it had received “the entirety
of the warrant.” The prosecutor (Los Angeles County Deputy District Attorney Robert
Cheleden) indicated, inter alia, he had not been aware that the court had “wanted the
Hobbs portion.” The court stated “I have not reviewed the other portion.” The
prosecutor replied, “It’s a two-page document.” The court later stated, “It would make it
easier for me, if that’s okay. I can do it at the bench since it’s short.” The reporter’s
transcript of this hearing, after reflecting the above information, states, “the court is
reviewing documents.” The reporter’s transcript reflects the court then stated, “Let me
give this back,” and the bailiff replied yes.
       Appellant reiterated his argument in his written motion and appellant’s counsel
stated he was referring to “the warrant based on information that was gathered following
the traffic stop.”2 Although the record is not entirely clear, it reflects, fairly read, that
appellant was referring to the omission of the quantity of narcotics from the affidavit
supporting the March 11, 2011 warrant, not the omission of that quantity from the




2
        Appellant’s written motion filed on July 25, 2011, sought to traverse the warrant
and suppress evidence on the sole ground the affiant omitted from the supporting
affidavit the quantity of narcotics recovered from appellant. At the September 1, 2011
hearing on the motion, appellant’s counsel indicated that at the time he noticed the
motion, he told the court he was concerned not only about “the ultimate warrant” but the
traffic stop the fruits of which led to the warrant. The court asked appellant to address, at
the September 1, 2011 hearing, the issue of the warrants, and appellant did so.
                                                4
supporting affidavit of the March 22, 2011 warrant. Appellant conceded the latter
warrant relied on Hobbs3 attachments to which he did not have access.
       After further argument, the court stated, “We’ll I’m going to deny the motion to
traverse, number one. I don’t think you’ve met the initial showing. [¶] I’ve reviewed the
entirety of the search, including the post-search portion. The court finds there is probable
cause.”4 Neither appellant’s written motion to traverse, the People’s written opposition
thereto, nor the reporter’s transcript of the September 1, 2011 hearing on the motion
reflects whether the March 15, 2011, or March 22, 2011 search warrants were sealed at
the time they were issued.
              (2) Proceedings Following the Filing of the Notice of Appeal.
       After appellant filed his notice of appeal in this case, appellant, through his
appellate counsel, Richard L. Fitzer, filed on July 12, 2012, a motion to augment the
record in this case. Appellant sought to augment the record with the “search warrant and
accompanying affidavit(s) signed by Judge [O’Connell] on March 15, 2011” (some
capitalization omitted) and the “search warrant and accompanying affidavit(s) signed by
Judge [Richman] on March 22, 2011” (some capitalization omitted). On August 1, 2012,
this court issued an order directing the superior court clerk to prepare an augmented
clerk’s transcript containing each “search warrant and accompanying affidavit.” (Some
capitalization omitted.) On August 6, 2012, the clerk of the superior court certified that
“a thorough search of the Superior Court file failed to produce” either “search warrant
and accompanying affidavit.” (Some capitalization omitted.)




3
       People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).
4
        The court later continued the case to September 23, 2011, for a Penal Code section
1538.5 suppression hearing concerning whether the traffic stop was valid (see fn. 2, ante)
and, on that date, the court denied that motion. The issue of the validity of the trial
court’s denial of the suppression motion to the extent it was based on a challenge to the
legality of the traffic stop is not at issue in this appeal.

                                              5
       On September 4, 2012, appellant filed with this court a motion that this court order
the superior court to settle the record or find it could not be settled. On October 3, 2012,
this court granted the motion.
       An October 23, 2012 minute order from Judge Priver reflects as follows.
“Pursuant to order from the Court of Appeal filed October 3, 2012; this court through
Deputy District Attorney Robert Cheleden, directed the investigating officer to provide
unredacted copies of the search warrants and supporting affidavits to the court in order to
settle the record. Pursuant to that request, the court received the unredacted search
warrants and the supporting affidavits signed by Judge [O’Connell] and Judge
[Richman]. Upon receipt of these documents this court reviewed the documents. The
search warrants and supporting affidavits are the documents reviewed by this court as
part of the motion held on September 1, 2011.”
       The order continues, “This court orders copies of the search warrants an[d]
supporting affidavits sent to the Court of Appeal, Attorney General and counsel for the
appella[nt], Clifton Cass. This court further orders the attorney general and counsel for
the appella[nt] not to disclose any previously sealed portions of the search warrants and
supporting affidavits to anyone without prior approval of the Court of Appeal. [¶]
A copy of this minute order and the above mentioned search warrants and supporting
affidavits are sent to the following in an envelope with postage prepaid addressed as
follows.” The names and addresses of this court, the Attorney General, and Fitzer are
then listed.
       On December 6, 2012, this court issued an order reflecting the following. On
October 3, 2012, this court directed the superior court to settle the record. On October
23, 2012, the superior court complied with that order and thereafter “submitted the settled
documents and minute order to this Court in an unsealed condition.”
       The order of this court issued December 6, 2012, then states, “The documents
have been returned to the Criminal Appeals Section of the Superior Court, which is
hereby directed to forward documents to [Judge Priver] . . . . The clerk of the Superior

                                              6
Court shall determine which documents were ordered sealed, place them in a sealed
envelope and return the envelope containing the documents to the Criminal Appeals
Section of the Superior Court, which in turn shall forward the envelope to this court
forthwith.”
       On December 11, 2012, an augmented clerk’s transcript was filed in this court. It
contains a December 7, 2012 minute order of Judge Priver, and a copy of the front and
back of a sealed envelope. The December 7, 2012 minute order of Judge Priver reflects,
“Pursuant to the order of the Court of Appeal dated 12-6-12, this court orders the
unredacted search warrant signed by Judge [O’Connell] dated March 15, 2011 and Judge
[Richman] dated March 22, 2011 be sealed in their entirety. The court further orders the
sealed documents returned to the appeal section of the Los Angeles Superior Court which
shall pursuant to the order of the Court of Appeal forward it forthwith to that court.”
(Some capitalization omitted.) The copy of the front of the above mentioned sealed
envelope reflects the present case name, and the statement “Sealed 12/7/12 [¶] Search
Warrants Enclosed.”
       This court has the sealed search warrant issued on March 15, 2011, by Judge
O’Connell and the sealed search warrant issued on March 22, 2011, by Judge Richman.
       b. Analysis.
              (1) The Trial Court Properly Denied Appellant’s Motion to Traverse.
       “In Franks v. Delaware (1978) 438 U.S. 154 [98 S.Ct. 2674, . . . ], the United
States Supreme Court held that a defendant may challenge the veracity of statements
contained in an affidavit of probable cause made in support of the issuance of a search
warrant. When presented with such a challenge, the lower courts must conduct an
evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit
contains statements that are deliberately false or were made in reckless disregard of the
truth and (2) the affidavit’s remaining contents, after the false statements are excised, are
insufficient to justify a finding of probable cause. At the evidentiary hearing, if the
statements are proved by a preponderance of the evidence to be false or reckless, they

                                              7
must be considered excised. If the remaining contents of the affidavit are insufficient to
establish probable cause, the warrant must be voided and any evidence seized pursuant to
that warrant must be suppressed. (Id. at pp. 155-156 . . . .)” (People v. Bradford (1997)
15 Cal.4th 1229, 1297, italics added.)
       “A defendant who challenges a search warrant based on omissions in the affidavit
bears the burden of showing an intentional or reckless omission of material information
that, when added to the affidavit, renders it insufficient to support a finding of probable
cause.” (People v. Scott (2011) 52 Cal.4th 452, 484.) A defendant must show the affiant
omitted the information “with the deliberate intention to create a false impression or with
reckless disregard for the truth.” (Id. at p. 485.) The defendant must make the substantial
showing by a preponderance of the evidence. (Id. at p. 484.)
       “Moreover, ‘there is a presumption of validity with respect to the affidavit. To
merit an evidentiary hearing[,] the defendant[’s] attack on the affidavit must be more than
conclusory and must be supported by more than a mere desire to cross-examine. . . . The
motion for an evidentiary hearing must be “accompanied by an offer of proof . . . [and]
should be accompanied by a statement of supporting reasons. Affidavits or otherwise
reliable statements of witnesses should be furnished,” or an explanation of their absence
given. [Citation.]’ (People v. Sandlin [(1991)] 230 Cal.App.3d [1310,] 1316, quoting
Franks, supra, 438 U.S. at p. 171 . . . .) [¶] ‘Mere conclusory contradictions of the
affiant’s statements are insufficient for the “substantial preliminary showing” Franks
requires.’ (People v. Sandlin, supra, 230 Cal.App.3d at p. 1318.)” (People v. Benjamin
(1999) 77 Cal.App.4th 264, 272 (Benjamin).)
       Absent the requisite substantial showing, a defendant is not entitled to an
evidentiary hearing on a motion to traverse, and the motion is properly denied.
(Cf. Benjamin, supra, 77 Cal.App.4th at pp. 267, 277.) We review such a denial de novo.
(People v. Panah (2005) 35 Cal.4th 395, 457-458.)




                                              8
       In the present case, appellant, through his written motion, and by his counsel’s
representations at the September 1, 2011 hearing, essentially indicated as follows. Based
on reports, it appeared the affiant for the search warrant executed on March 15, 2011,
believed appellant was a drug dealer. The affiant based this belief on cocaine base
recovered from appellant’s car following a traffic violation and based on certain
statements appellant later made. However, the supporting affidavit omitted the fact the
cocaine base weighed .77 grams.
       Neither appellant’s written motion nor appellant’s counsel at the hearing indicated
where appellant’s counsel obtained the information about the alleged omission. Neither
the written motion nor appellant’s counsel at the hearing stated the allegedly omitted
information was omitted deliberately or in reckless disregard for the truth. Affidavits or
otherwise reliable statements of witnesses were not furnished, nor was an explanation of
their absence given. Appellant had the burden of showing any omissions were material.
We note the prosecutor’s written opposition indicated deputies recovered two baggies
containing apparent rock cocaine plus six empty plastic bags. The trial court did not err
by denying appellant’s motion to traverse absent an evidentiary hearing.
              (2) The Trial Court Properly Denied Appellant’s Motions to Unseal the
Hobbs Attachment and to Suppress Evidence.
       The nonconfidential record reflects as follows. The motion to traverse which
appellant filed on July 25, 2011, stated, “[i]t must be noted that this was a Hobbs warrant
and that a portion of the affidavit has been sealed so that Counsel cannot determine if
probable cause for the search warrant is [shown] therein. The Court is urged to unseal
the balance of the affidavit and review it for such content.” At the September 1, 2011
hearing on the motion to traverse, Judge Priver indicated there was “Hobbs approval” on
the search warrant issued on March 22, 2011, by Judge Richman. Moreover, fairly read,
the record of that September 1, 2011 hearing reflects there was a “Hobbs attachment(s)”
consisting of two pages which Judge Priver read to herself on the bench on that date. The



                                             9
record also reflects Judge Priver returned that attachment to the prosecutor before Judge
Priver heard argument on the motion to traverse and denied the motion.
       Appellant asks this court to review independently the sealed two-page Hobbs
attachment to determine whether Judge Priver properly failed to unseal the Hobbs
attachment and properly denied appellant’s motion to traverse.
       We have reviewed the sealed two-page Hobbs attachment, the March 15, 2011
search warrant issued by Judge O’Connell, the March 22, 2011 search warrant issued by
Judge Richman, and the affidavits in support of those warrants.5 We are satisfied the trial
court properly denied appellant’s motion to unseal the sealed two-page Hobbs
attachment. Moreover, we conclude it was not reasonably probable appellant could have
prevailed on any motion to traverse the warrant(s) and suppress evidence; therefore, the
court properly denied those motions. (Cf. Hobbs, supra, 7 Cal.4th at pp. 975-977.)
2. The Trial Court Fulfilled Its Responsibilities Under Pitchess.
       The nonconfidential record reflects as follows. On October 11, 2011, appellant
filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (hereafter,
Pitchess motion) seeking various information in the personnel files of Los Angeles
County Sheriff Deputies Garcia and Palmieri (the deputies who conducted the underlying
traffic stop) that was “relevant to defendant’s defense to the charges of violating . . .
possession for sale of a controlled substance.” The motion indicated appellant sought the
information to locate witnesses who could impeach the deputies at a jury trial, provide
information which could be used to cross-examine them at trial, or provide information
leading to other admissible evidence. The motion did not expressly seek the information
to challenge either of the search warrants. The November 4, 2011 minute order reflects
the court scheduled a November 16, 2011 “in camera hearing as to the limited issue of
facts as they relate to the probable cause for the stop.” The November 16, 2011 minute

5
       Pursuant to this court’s June 27, 2013 order, Deputy Attorney General Mary
Sanchez delivered the sealed two-page Hobbs attachment(s) to this court in camera on
July 18, 2013. This court then reviewed in camera said sealed Hobbs attachment(s), then
immediately returned it in camera to Deputy Attorney General Mary Sanchez.
                                              10
order reflects the court concluded there was discoverable material and the court ordered
that it be provided to appellant’s trial counsel. The trial court did not indicate there was
any other discoverable information. The trial court ordered sealed the transcript of the in
camera hearing.
       Appellant claims this court should review the record pertaining to the Pitchess
motion to determine whether the trial court erred by not concluding there was additional
discoverable information. The claim is unavailing. Appellant waived the issue by his
pleas of guilty. (Cf. People v. Collins (2004) 115 Cal.App.4th 137, 148; People v.
Hunter (2002) 100 Cal.App.4th 37, 40-43.) The Pitchess motion was not intertwined
with his Penal Code section 1538.5 suppression motion(s).6
       Even if the Pitchess issue was not waived, trial courts are granted wide discretion
when ruling on motions to discover police officer personnel records. (People v. Samayoa
(1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832.) We have
reviewed the contents of the sealed transcript of the November 16, 2011 in camera
Pitchess hearing. The transcript constitutes an adequate record of the trial court’s review
of any document(s) provided to the trial court during the in camera hearing, and said
transcript fails to demonstrate the trial court abused its discretion by failing to disclose
any additional information. (Cf. Samayoa, at p. 827; see People v. Mooc (2001)
26 Cal.4th 1216, 1228-1230, 1232.) The trial court fulfilled its responsibilities under
Pitchess.




6
       As mentioned, the trial court, on September 1, 2011, denied appellant’s Penal
Code section 1538.5 motion to traverse and suppress evidence pertaining to the search
warrant(s), and on September 23, 2011, denied appellant’s section 1538.5 suppression
motion pertaining to the validity of the traffic stop. Appellant filed his Pitchess motion
later.

                                              11
                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KITCHING, J.

We concur:




             CROSKEY, Acting P. J.




             ALDRICH, J.




                                     12
