Filed 12/31/14 Farmer v. Super. Ct. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



RAYMOND FARMER,                                                  D066840

         Petitioner,                                             (San Diego County
                                                                 Super. Ct. No. CN329882)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


THE PEOPLE,

         Real Party in Interest.


         ORIGINAL PROCEEDINGS in mandate. James M. Dorr, Judge. (Retired Judge

of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of

the Cal. Const.) Petition granted in part and denied in part.

         Steven Schorr for Petitioner.

         Bonnie M. Dumanis, District Attorney, Laura E. Tanney, Chief Deputy District

Attorney, Kathryn Gayle, Deputy District Attorney, for Real Party in Interest.

         No appearance by Respondent.
       In this original proceeding, we consider an application of our Supreme Court's

decision in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), which articulated the

procedure courts should use in assessing the sufficiency of an affidavit supporting a

search warrant, where that affidavit has been sealed in whole or in part. Petitioner

Raymond Farmer claims the court here erred in applying Hobbs. He further claims the

procedure outlined in Hobbs violates his constitutional rights, both generally and as

applied in this case.

       The San Diego County District Attorney concedes, and we agree, that the trial

court erred in applying Hobbs. We therefore grant the petition in part, as we will discuss.

The remainder of Farmer's petition is denied.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In February 2014, a detective with the Oceanside Police Department, Jerrold

Butler, applied for a search warrant for certain premises located on Laurel Road in the

City of Oceanside. In support of the application, Butler submitted an affidavit describing

the premises and persons to be searched, the items to be seized, Butler's qualifications,

and the probable cause supporting the issuance of a search warrant. Butler also submitted

a declaration requesting that his affidavit be sealed under a public entity's privilege to

refuse to disclose the identity of confidential informants. (Evid. Code, § 1041; Hobbs,

supra, 7 Cal.4th at pp. 959-960.) The superior court issued the search warrant and sealed

the supporting affidavit as requested.




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       The search warrant identified the premises to be searched as a single address on

Laurel Road. Petitioner Raymond Farmer and his wife reside at that address in a large,

multilevel home. Beneath their living area are two apartments that they rented to tenants.

       Police executed the search warrant and entered the living area occupied by Farmer

and his wife. They met Farmer and his wife in their bedroom. After Farmer asked to put

on his pants, a police officer searched the pockets of the pants. The officer found a

usable amount of methamphetamines, cash, and a pipe used for smoking

methamphetamines. The police asked Farmer if he had a gun, and he identified a

handgun and ammunition in a gun case near his bed.

       In a criminal complaint, the District Attorney charged Farmer with four felony

counts: possession of a controlled substance while armed with a firearm (Health & Saf.

Code, § 11370.1, subd. (a)); possession of a firearm by a felon (Pen. Code, § 29800,

subd. (a)(1)); possession of ammunition by a felon (id., § 30305, subd. (a)(1)); and

possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377,

subd. (a)). The District Attorney also charged Farmer with one misdemeanor count:

possession of drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)).

       Farmer filed a motion to suppress the evidence obtained during the search of his

home. Farmer's motion was deemed to include a motion to traverse the search warrant.

A motion to traverse mounts a subfacial challenge to the warrant, i.e., a challenge to the

truth of the factual statements supporting the warrant. (People v. Heslington (2011) 195

Cal.App.4th 947, 957, fn. 7 (Heslington).) The District Attorney opposed.



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       Following the procedure outlined in Hobbs, the trial court considered Farmer's

motions by holding an in camera hearing to examine the sealed affidavit and hear

testimony from Butler. (Hobbs, supra, 7 Cal.4th at pp. 971-972, 974.) Consistent with

Hobbs, Farmer and his counsel were excluded from the in camera hearing, although

Farmer was allowed to submit questions to the court for its use during Butler's testimony.

Following the in camera hearing, the trial court ordered the affidavit resealed in its

entirety. The court ordered the transcript of Butler's testimony sealed as well. The court

found disclosure of the affidavit "would result in a specific danger to witnesses, and that

there is no exculpatory information [in the affidavit]." The court further found no

inconsistencies or misrepresentations in the affidavit. The court denied Farmer's motion

to suppress and motion to traverse.

       Farmer filed a petition for writ of mandate challenging the court's orders and

requesting an immediate stay of the criminal proceedings against him. This court issued

a stay and, on its own motion, augmented the record in this proceeding to include the

sealed affidavit and Butler's sealed testimony.1 We requested an informal response from

the real party in interest, which the District Attorney provided. In her response, the

District Attorney concedes the court erred in ordering the affidavit sealed in its entirety.

We therefore directed the clerk to provide notice that we were considering issuing a

peremptory writ in the first instance with respect to the relief conceded by the District

Attorney. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

1      Farmer has filed a request for transmittal of the sealed affidavit and Butler's sealed
testimony. In light of our order augmenting the record, Farmer's motion is denied as
moot.
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                                       DISCUSSION

       In Hobbs, the Supreme Court confirmed that "all or any part of a search warrant

affidavit may be sealed if necessary to implement the privilege [under Evidence Code,

section 1041] and protect the identity of a confidential informant." (Hobbs, supra, 7

Cal.4th at p. 971.) "But, in order to preserve a defendant's right to 'reasonable access to

information that might form the basis for challenging the validity of a search warrant,' a

trial court must follow certain procedures when a search warrant affidavit has been fully

or partially sealed. [Citation.] These procedures 'strike a fair balance between the

People's right to assert the informant's privilege and the defendant's discovery rights.' "

(Heslington, supra, 195 Cal.App.4th at p. 956.)

       "On a properly noticed motion by the defense seeking to quash or traverse the

search warrant, 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.) "If the trial court, in entertaining a defense motion challenging the warrant, finds

that any portion of the affidavit sealed by the magistrate can be further redacted, and the

remaining excerpted portion made public without thereby divulging the informant's

identity, such additional limited disclosure should be ordered." (Id. at p. 972, fn. 7.) We

review the trial court's determination for abuse of discretion. (Id. at p. 976; but see

People v. Martinez (2005) 132 Cal.App.4th 233, 241-242 [independent review].)

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       Here, the trial court ordered the affidavit sealed in its entirety, finding that

disclosure of the affidavit "would result in a specific danger to witnesses . . . ." It is

unclear if the court determined (1) "whether sufficient grounds exist for maintaining the

confidentiality of the informant's identity" and (2) if so, whether partial redaction would

be sufficient to maintain such confidentiality. (Hobbs, supra, 7 Cal.4th at p. 972.) Our

review of the record, including the affidavit and the sealed transcript of Butler's

testimony, reveals no basis for the trial court's conclusion that the entirety of the affidavit

should remain sealed. Indeed, based on our review, substantial portions of the affidavit

do not tend to reveal the identity of a confidential informant and therefore should not

have been sealed under Hobbs. We therefore conclude, based on the current record, that

the trial court abused its discretion in ordering that the entirety of the affidavit remain

sealed. (Ibid.) The court's order should be vacated.

       Because the trial court sealed the entirety of the affidavit supporting the search

warrant, the court proceeded to the next step of the Hobbs procedure and considered the

merits of Farmer's motions. (Hobbs, supra, 7 Cal.4th at p. 974.) Given our conclusion

that the court's sealing order should be vacated, the court's order on the merits of Farmer's

motions must be vacated as well. (Ibid.) On remand, depending on the outcome of the

court's determination regarding sealing, the court should allow Farmer to supplement his

motions or, if necessary, proceed to a further hearing. (Heslington, supra, 195

Cal.App.4th at pp. 957-959; Hobbs, supra, 7 Cal.4th at pp. 974-975.)

       As noted, the District Attorney has conceded that the court did not properly

consider the extent of sealing necessary to protect an informant's identity or consider

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whether any portion of the affidavit might be unsealed. The District Attorney agrees that

the court should have ordered the prosecution to provide a redacted copy of the affidavit

to Farmer and allowed him to proceed with his motions or request a further hearing. This

relief having been conceded by the District Attorney, a peremptory writ in the first

instance is appropriate. (Banning Ranch Conservancy v. Superior Court (2011) 193

Cal.App.4th 903, 919.)

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the superior court to vacate its

September 22, 2014, orders sealing the affidavit in its entirety and denying Farmer's

motions to suppress and traverse the search warrant. The court should reconsider its

decision sealing the affidavit in its entirety and conduct further proceedings consistent

with this opinion. Farmer's petition is denied in all other respects. Farmer's request for

transmittal is denied as moot. The stay issued on October 28, 2014, is vacated. This

opinion will be final as to this court 10 days from its filing. (Cal. Rules of Court, rule

8.490(b)(2)(A).)



                                                                        McCONNELL, P. J.

WE CONCUR:



                    O'ROURKE, J.



                         NARES, J.

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