Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F13279
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Anthony Lee Baldwin was convicted by guilty plea of vehicle theft (Veh. Code, § 10851), and by no contest plea of resisting a police officer (Pen. Code, § 148, subd. (a), a misdemeanor). He also admitted having served two prior prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to four years in state prison and awarded him 486 days of presentence custody credits.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the trial court erred by denying his motion to suppress evidence (§ 1538.5), because the officer who prepared the affidavit supporting the search warrant authorizing the search of defendant’s residence and vehicles retained a portion of the affidavit after the trial court granted the officer’s request to seal that portion of it. Defendant also contends, and the Attorney General concedes, that he is entitled to one additional day of presentence custody credit. We will order modification of the judgment by granting defendant one additional day of presentence custody credit, and affirm the judgment as so modified.
BACKGROUND
Defendant was charged by second amended complaint filed May 12, 2006, with receiving stolen property (§ 496, subd. (a); count 1), vehicle theft (Veh. Code, § 10851, subd. (a); count 2), resisting a peace officer (§ 148, subd. (a); count 3 a misdemeanor), and possession of burglar’s tools (§ 466; count 4, a misdemeanor). The complaint further alleged that defendant had four prior convictions that qualified as strikes (§ 667, subds. (b)-(i)), and had served four prior prison terms (§ 667.5, subd. (b)). Similar charges were brought against Jesse Joel Jones and two others by separate complaints. On June 5, 2006, Jones filed a motion to suppress evidence contending that the unsealed portion of the affidavit supporting the underlying search warrant was not supported by probable cause. She further contended that the sealing of a portion of the affidavit denied her due process requiring dismissal. On June 20, 2006, defendant filed a notice of joinder in Jones’s motion to suppress evidence or to dismiss.
Attached to Jones’s motion was a copy of the unsealed portion of Watsonville Police Officer Skip Prigge’s affidavit in support of the search warrant. The affidavit states in part: “Your affiant believes that disclosure of the names of the witnesses will unnecessarily place the witness in serious jeopardy. Disclosure of the information contained in this affidavit could also result in intimidation of witnesses and could seriously undermine and compromise the on-going investigation of these cases. Your affiant therefore requests that the portion of this affidavit that documents the information obtained from the confidential informants be sealed under the authority of People v. Hobbs (1989) 7 Cal.4th 948. Your affiant requests that the information in the affidavit be fully considered for purposes of probable cause and then sealed, pursuant to Evidence Code sections 1040 and 1041, and not be opened until a further court order is made ordering disclosure of the affidavit.”
At a hearing on July 24, 2006, before Judge Jeff Almquist, Officer Prigge testified that he sealed a portion of the affidavit in support of the search warrant in Judge Michael Barton’s presence on May 2, 2006, by placing it in an envelope, sealing it with tape, writing his initials and the date on the tape, and having Judge Barton do the same. He then booked the sealed document into the Watsonville Police Department evidence room. He retrieved the envelope from the evidence room for the hearing that day, and found the envelope to be in the same sealed condition as when he booked it into property. Officer Prigge further testified that Judge Barton signed an order authorizing the sealing, but a copy of the order was not placed in the court file. Rather, the order was placed in the envelope with the sealed portion of the affidavit before it was sealed. The sealed envelope was marked as People’s exhibit No. 1.
The prosecutor argued that Officer Prigge followed the proper procedure for a pre-complaint search warrant, and asked the court to review the sealed portion of the affidavit in camera. Defendant argued that the proper procedure would have been to file the sealed portion of the affidavit with the court along with the unsealed portion “to reserve the sanctity of the evidence.”
The court ruled as follows: “I find that Officer Prigge’s method of safeguarding this information, which may or may not have become an issue based on – at the time he obtained it, was the same method of preserving evidence that any officer would use for any other kind of evidence. [¶] He took adequate steps to ensure the document not be altered in any way after Judge Barton reviewed it. [¶] The fact is that sometimes search warrants don’t find anything and nothing much ever comes from it. But at this point, the document does become part of the official record. [¶] I’m going to review it in camera . . . . I’m going to review it to determine whether any portion of it should be disclosed and whether there’s accurate information in there to support the search warrant itself.” “I note that the sealed mark does contain Officer Prigge’s initials and Judge Barton’s initials, which I recognize, and it appears the tape has not been altered in any way.” The court then unsealed and reviewed the contents of the envelope but allowed defendant time to submit written questions for a further in camera review.
The in camera hearing was held on August 11, 2006, during which Judge Almquist asked Officer Prigge the questions submitted by the defense. On August 15, 2006, the court ruled as follows: “I’ll find that based on further information, it was proper to seal the sealed portion of the search warrant as information about the identity of the confidential informants would endanger them, and their identities would be known if the sealed portions were – information were made known – actually, all the information in the sealed portion regarding the information from the confidential informants appears to be reliable, and the confidential informants appear to have been reliable. [¶] So there’s no – they have no apparent motivation to lie or [to] make any false accusations. They received no case consideration or any promises of case or financial consideration prior to providing the information, and in the totality of the circumstances the information they provided appears to have been reliable and was properly corroborated by Officer Prigge prior to presenting the application to the Court for approval of the search warrant. [¶] And based upon the totality of the circumstances, it appears that there was probable cause to believe that evidence of the crimes charged in this case would be found in the location where the search warrant was executed and, in fact, it was.”
The preliminary hearing was held on October 30, 2006. As relevant to this appeal, the evidence at the preliminary hearing was that the search warrant was served by officers at a Nona Avenue residence in Watsonville on May 2, 2006. Defendant had been sharing a bedroom in the residence with Jones. In the driveway of the residence was a stolen grey Honda Passport that had obliterated identification numbers and a license plate belonging to another vehicle. In the Honda officers found a July 2006 issue of a subscription magazine addressed to defendant, an envelope with defendant’s nickname on it, and defendant’s keys. Also, an officer had seen defendant driving the Honda the week before the search. Burglar tools and stolen property were found in defendant’s and Jones’s bedroom. Defendant ran from the home and did not stop when ordered to do so. Officers released a police dog, and the dog bit defendant on his leg as he was jumping over a fence and again after defendant, an officer, and the dog were in the next yard. Defendant was taken into custody shortly thereafter.
The envelope had “TROUBLE” written on it and defendant has a tattoo on his neck that says “TROUBLE.”
On November 9, 2006, an information was filed that included the same charges and prior allegations as the second amended complaint. On December 8, 2006, Jones renewed her motion to suppress, and defendant joined in the motion. Following a hearing on February 23, 2007, before Judge John Salazar, the court ruled as follows.
“So, for the record, the Court has reviewed the preliminary hearing transcript, the motion transcripts that are available, the motions and responses that have been filed with the court by the attorneys. [¶] I’ve also reviewed the original search warrant and – minus the sealed page. I’ve reviewed the sealed pages I’m in possession – that I have in front of me right now, of the manila envelope that was sealed when brought to this Court, and it was opened after that. Initially, it was sealed on May the 2nd, 2006. I have the initials ‘SP,’ with the number 0812. Those initials, I believe are Skip Prigge, and I’m assuming that’s his badge number. I don’t know from personal knowledge. I have the initials, also, ‘MEB,’ with the date 5-2-06, and those initials I recognize as being Judge Barton’s. Also on that sealed envelope, I have the initials, ‘GC,’ with a date of 7-24-06. That’s the date this matter was on calendar in front of Judge Almquist, and those initials are of our clerk, . . . Georgette Candelaria, . . . from that date, and I’ve also opened that up and reviewed those pages and resealed it, with my initials, ‘JSS,’ and the date that I opened that up. [¶] So, in reviewing the sealed pages, I do find sufficient cause for the issuance of the search warrant. [¶] I’m also convinced that that the pages that Judge Barton reviewed are the same pages that are present in this envelope that I reviewed. [¶] I don’t see any prejudice to the defense regarding Prigge taking these documents. They should have been lodged with the court, and this shouldn’t happen again, that an officer takes those sealed pages, but there’s an adequate record here to indicate what it was . . . that Judge Barton reviewed based on how the chain of custody has been documented to this court, and it all . . . fits in. The sealed pages are consistent with the rest of the search warrant as well. [¶] So, as to those issues, I’m going to deny the motion.” “And, again, I’m keeping that sealed envelope here, putting it back in our envelope, to be lodged with the clerk.”
Defendant then pleaded guilty to violating Vehicle Code section 10851, subdivision (a) (count 2), and no contest to violating section 148, subdivision (a) (count 3, a misdemeanor), admitted two prison prior allegations (§ 667.5, subd. (b)), and waived time for sentencing and a presentence report in exchange for an indicated sentence of four years in state prison. On March 22, 2007, the court sentenced defendant to state prison for four years and granted him presentence credits of 324 actual days and 162 local conduct credits.
DISCUSSION
Section 1534, subdivision (a), provides that the contents of a search warrant, including the supporting affidavit setting forth the facts establishing probable cause for the search, become a public record once the warrant is executed and returned. However, in People v. Hobbs, supra, 7 Cal.4th 948 (Hobbs), the court held that if certain procedures are followed to preserve the defendant’s right to challenge the validity of a search warrant, a major portion or all of the search warrant affidavit may be sealed to protect the identity of a confidential informant. (Id. at pp. 955, 971-975.) On a properly noticed motion by a defendant to quash or traverse the warrant, the trial court must conduct an in camera hearing after allowing the defendant to submit written questions to be asked of any witness called to testify at the hearing. (Id. at p. 973.) At the hearing, the court is to determine (1) whether the affidavit has been properly sealed (id. at pp. 972-973), and (2) whether, under the totality of the circumstances presented in the entire affidavit and any testimony presented to the court, there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. (Id. 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 appellate review. [Citations.]” (Ibid.)
§ 1534, subd. (a) states in relevant part: “A search warrant shall be executed and returned within 10 days after date of issuance. . . . The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.”
In People v. Martinez (2005) 132 Cal.App.4th 233 (Martinez), the record on appeal showed that the sealed portion of the affidavit supporting the search warrant at issue was brought to the in camera hearing by the investigating officer and was returned to him at the conclusion of the hearing. Inquiries by the appellate court to the trial court confirmed that the confidential document was not in the superior court’s files. (Id. at p. 239.) The appellate court had to order the trial court to retrieve the confidential document, authenticate it as the one that was reviewed during the in camera hearing, unseal and make a copy of it, reseal it, and transmit the copy to the appellate court in a sealed condition. (Ibid.) The appellate court stated: “We have no reason to doubt the authenticity of the confidential attachment forwarded to us by the trial court. But we question the trial court’s decision to allow a law enforcement officer to retain a sealed document in his or her possession, particularly once the court has reviewed the document in camera in ruling on a motion to traverse and quash the search warrant. The trial court should have filed the confidential attachment in a sealed condition along with the search warrant and related affidavit following the in camera hearing.” (Id. at pp. 239-240.) “Had the trial court complied with this procedural requirement, the extra time and expense it took to handle this appeal would have been avoided. But more importantly, future compliance will ensure the integrity of sealed documents used to support search warrants.” (Id. at p. 240.)
Defendant concedes that the trial court properly followed the procedures outlined in Hobbs. The record on appeal also shows that the trial court complied with the procedures outlined in Martinez: it filed and retained the confidential attachment in a sealed condition following the in camera hearing. Nevertheless, defendant contends that allowing Officer Prigge to retain custody of the sealed affidavit after it was approved and signed by the magistrate but before the in camera hearing “is a violation of [defendant’s] Fourth and Fifteenth [sic] Amendment rights.” “Here, Judge Barton never authenticated that the affidavit reviewed by the Court in hearing the motion to suppress was the same affidavit he reviewed in issuing the search warrant. Judge Barton did not testify, rather, Judge Salazar, who heard the suppression motion, stated that he recognized Judge Barton’s initials. Since the affidavit was not authenticated, it is not known that the documents reviewed by the court hearing the motion were the same as those seen by Judge Barton.”
The issue of whether confidential information in a sealed search warrant affidavit, which was reviewed by the trial court pursuant to Hobbs, must be retained by the court rather than law enforcement in order to provide an adequate record for appeal is currently before our Supreme Court. (People v. Galland (2006) 146 Cal.App.4th 277, review granted April 18, 2007, S149890.)
Like the appellate court in Martinez, we have no reason to doubt the authenticity of the confidential document forwarded to this court as People’s exhibit No. 1 from the July 24, 2006 hearing before Judge Almquist. At that hearing, Officer Prigge authenticated the contents of People’s exhibit No. 1 as the sealed portion of the affidavit that Judge Barton reviewed before signing the search warrant. Judge Almquist unsealed and reviewed the document at the July 24, 2006 hearing, and ordered the sealed document be made a part of the superior court file. Judge Almquist reviewed the document again at the in camera hearing on August 11, 2006. The sealed document remained sealed in the superior court file and was reviewed by Judge Salazar at the hearing on the renewed motion to suppress on February 23, 2007. Judge Salazar resealed the document and returned it to the court file, and it was forwarded to this court in sealed condition at our request. Therefore, for purposes of our review, we are confident that we have the same confidential document that Judge Almquist reviewed at the in camera hearing.
Both Judge Almquist and Judge Salazar found that the sealed affidavit was properly sealed and that probable cause supported issuance of the search warrant. Defendant requests that we review the sealed affidavit to determine whether it was properly sealed and whether the search warrant properly issued. After independently reviewing the record, including the sealed document, we agree with the trial court that if the information in the sealed document were disclosed, the identity of the confidential informants would be revealed. Thus, the confidential affidavit was properly ordered sealed. (Hobbs, supra, 7 Cal.4th at pp. 972-973.) In addition, we find that, under the totality of the circumstances presented in the search warrant affidavit and the oral testimony during the in camera hearing before Judge Almquist, there was a fair probability that contraband or evidence of a crime would be found in the residence searched pursuant to the warrant. (Id. at p. 975.) Accordingly, no Fourth Amendment or due process violation occurred.
Presentence Custody Credit
Defendant contends, and the Attorney General concedes, that he is entitled to one additional day of presentence custody credits. The record on appeal indicates that defendant was arrested on May 2, 2006, the day the search warrant was executed, and he remained in custody until sentenced on March 22, 2007. Counting the day of his arrest and the day of sentencing (People v. King (1992) 3 Cal.App.4th 882, 886), that is 325 days. Under section 4019, presentence conduct credit is calculated “by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total is added to the original number of days spent in custody.” (People v. Fry (1993) 19 Cal.App.4th 1334, 1341; accord, People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) Using this formula, defendant is entitled to 325 actual days credit and 162 days local conduct credit for a total of 487 days of credit. Accordingly, we will order the abstract of judgment modified to include one additional day of custody credit.
DISPOSITION
The abstract of judgment is ordered modified to state that defendant is entitled to 325 actual days plus 162 local conduct credits, for a total of 487 presentence custody credits. As so modified the judgment is affirmed. The clerk of the superior court is ordered to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., MCADAMS, J.