Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 01CF2350. Robert R. Fitzgerald, Judge. (Retired judge of the Orange S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Lynne G. McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
This is the third time we have addressed defendant’s motions to quash and traverse the search warrant that led to his arrest and conviction for transporting methamphetamine and possessing methamphetamine for sale. (People v. Galland (2008) 45 Cal.4th 354, 361-363 (Galland III).) Following the directive of Supreme Court in Galland III, supra, 45 Cal.4th 354, we remanded the matter to the trial court for reconstruction of the record pertaining to the sealed search warrant affidavit at issue in this matter. The trial court conducted an in camera review as directed, and transmitted to this court the reconstructed and sealed record and a sealed reporter’s transcript of the in camera review. Having reviewed the items received, we now address the issues raised in defendant’s pending appeal.
First, we reject defendant’s assertions, made in his supplemental briefing, to the effect that the trial court failed to carry out the instructions from the Supreme Court and this court on remand. Just because this court did not unseal the reporter’s transcript of the in camera hearing on remand does not mean that the trial court discussed the confidential informant and nothing else, thereby failing to look into the handling and destruction of the original sealed search warrant affidavit and the creation and handling of what the defendant refers as to a “mystery document” contained in the sealed envelopes.
Second, we are unpersuaded by defendant’s remaining arguments as raised in his opening brief. Defendant contends the trial court, on remand following the first appeal in this matter (People v. Galland (2004) 116 Cal.App.4th 489 (Galland I)), failed to comply with the requirements of People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) when it held a June 29, 2004 in camera review of the sealed search warrant affidavit and thereafter denied his motions to quash and traverse. We disagree with defendant’s charges of procedural error, and also conclude that the court properly denied the motions. Furthermore, we reject defendant’s assertion that Hobbs, supra, 7 Cal.4th 948 is unconstitutional. We also disagree with his contention that his motion to suppress should have been granted because of violations of knock-notice requirements. Finally, this court previously ordered the correction of errors in the abstract of judgment and we need not reiterate that order in this opinion. We affirm the judgment.
I PROCEDURAL HISTORY
“In this case, City of Buena Park police obtained a warrant to search defendant’s home, vehicle, and person for methamphetamine and evidence of methamphetamine sales. [In August 2001, 8 days after] the warrant was executed, a portion of the search warrant affidavit was ordered sealed to protect the identity and safety of one or more confidential informants. The magistrate ordered that this portion of the affidavit be secured in the Buena Park Police Department property room.” (Galland III, supra, 45 Cal.4th at pp. 359-360.) “In June 2002, defendant filed motions to quash and traverse the search warrant and to suppress evidence seized as a result of the search.... Defendant requested the trial court conduct an in camera review of the entire warrant affidavit to determine whether it contained probable cause and whether any of the sealed affidavit could be disclosed without jeopardizing the identity of the confidential informant.” (Id. at p. 361.) On August 2, 2002, Judge Robert R. Fitzgerald denied the motions and the request for an in camera review. Defendant subsequently pleaded guilty to transporting methamphetamine and to possessing methamphetamine for sale and admitted certain arming enhancements and prior prison term allegations. “After he was sentenced to five years in prison, he filed an appeal from the court’s order denying his motions to quash and traverse the warrant and to suppress evidence....” (Ibid.)
In the first appeal, we “held that Judge Fitzgerald’s denial of defendant’s request for an in camera review of the warrant affidavit violated the procedure set forth in Hobbs, supra, 7 Cal.4th 948. [Citation.])” (Galland III, supra, 45 Cal.4th at p. 362.) We “conditionally reversed the judgment to allow the trial court to conduct an in camera review of the search warrant affidavit and to prepare a proper record of those proceedings. [Citation.] [¶] Judge Fitzgerald conducted the in camera review on June 29, 2004.” (Galland III, supra, 45 Cal.4th at p. 362.)
“The sealed affidavit was... brought to court[, for the June 29, 2004 in camera hearing,] to enable the Orange County Superior Court to rule on defendant’s motions under Penal Code section 1538.5 to quash and traverse the warrant and to suppress the evidence.” (Galland III, supra, 45 Cal.4th at pp. 359, 362.) Judge Fitzgerald reviewed the affidavit in camera with David Hankins, the affiant. (Id. At pp. 360, 362.) He then denied the motions and “ordered copies of the original documents to be sealed and placed in the court file and the original sealed documents to be returned ‘to the law enforcement agent.’” (Id. at p. 362.)
Defendant appealed the denial of his motions, and we thereafter learned that the original sealed portion of the affidavit had been purged from the police department files. (Galland III, supra, 45 Cal.4th at p. 362.) On March 9, 2005, the Orange County District Attorney’s Office sent us a five-page facsimile “which included what appeared to be an unsigned version of the entire warrant affidavit.... A copy of the sealed facsimile was transmitted back to the superior court for it to determine whether [the] five-page facsimile was the same document the superior court had reviewed in camera on June 29, 2004.... [¶] On April 12, 2005, Judge Fitzgerald reviewed the five-page facsimile... and determined that it was in substance the same as the affidavit he had reviewed in camera on June 29, 2004. He also discovered ‘another piece of paper that was in another sealed envelope.’... Without explaining the origin of this document, Judge Fitzgerald determined that the newly discovered document had been inadvertently omitted from the superior court file. Judge Fitzgerald ordered the court’s file augmented with a supplemental clerk’s transcript, ‘including this courts find [sic] and the sealed affidavit.’” (Id. at p. 363.)
In our opinion addressing the second appeal (People v. Galland (2006) 146 Cal.App.4th 277 (Galland II), revd. and cause remanded (2008) 45 Cal.4th 354), we held that the trial court erred in permitting the police department to retain a portion of the original search warrant affidavit and we reversed the judgment. (Galland III, supra, 45 Cal.4th at p. 363.) Thereafter, Judge Kazuharu Makino “inform[ed] the parties that the Orange County Superior Court Clerk’s Office had located a filed copy of the sealed materials that were considered by Judge Fitzgerald at the June 29, 2004, in camera hearing[,]” that copy having been in the possession of the court the entire time. (Ibid.)
The Supreme Court in Galland III, supra, 45 Cal.4th 354, agreed with this court that the magistrate had erred in ordering the police department to retain the original sealed portion of the affidavit, but disagreed as to the reasons why. (Id. at p. 359.) It found that this court “was mistaken in concluding that the magistrate’s error, and the subsequent loss of the original sealed search warrant affidavit, rendered it impossible to safeguard defendant’s right to meaningful appellate review.” (Id. at p. 360.) Furthermore, it stated: “Although the original affidavit has been lost, the superior court determined that the five-page unsigned document submitted by the district attorney’s office in its place was otherwise identical to the affidavit the superior court had reviewed prior to denying defendant’s motion to suppress, and that factual finding is supported by substantial evidence. Moreover, subsequent to the [rendition of the second appellate] decision, the Orange County Superior Court discovered[, in its files,] a copy of the original sealed search warrant affidavit” (ibid.) as “considered by Judge Fitzgerald at the June 29, 2004, in camera hearing.” (Id. at p. 363.) In conclusion, the Supreme Court reversed the judgment of this court and remanded the matter for further proceedings consistent with its opinion. (Id. at p. 360.)
As directed by the Supreme Court, we remanded the matter to the superior court with directions to “conduct a full hearing to reconstruct or settle the record as to the missing original sealed search warrant affidavit.” The superior court was permitted to consider all relevant matters, including the five-page unsigned document this court received from the Orange County District Attorney’s Office on March 9, 2005, the filed copy of the sealed materials that Judge Fitzgerald had considered at the June 29, 2004 in camera hearing, and the unidentified single-page document that Judge Fitzgerald had discovered on April 12, 2005, and “if necessary, [to] inquire into the circumstances under which the original affidavit was purged.” (Galland III, supra, 45 Cal.4th at p. 373.) We ordered that the superior court, after the hearing, transmit to this court “a sealed reporter’s transcript of the hearing, and the reconstructed or settled record, sealed to the extent necessary to protect the identity of the confidential informant....”
The superior court set a hearing for May 20, 2009. In advance of that hearing, defendant filed a brief in which he requested that all sealed documents in the case be unsealed, including: “(1) the original sealed portion of Hankins’s affidavit that Hankins retained and was later destroyed; (2) the five-page facsimile... faxed to [this court] by the prosecution that appears to be an unsigned version of the entire warrant affidavit; (3) ‘another piece of paper that was in another sealed envelope’... discovered by [the superior court] on April 12, 2005; and (4) a filed copy of what Judge Makino described as the sealed materials... that were considered by [the superior court] at the June 29, 2004 hearing that were apparently discovered on January 22, 2007.” He requested, in the alternative, that his counsel be permitted to view the documents subject to a protective order prohibiting disclosure of the contents of the documents. In his brief, defendant also framed more than two dozen questions about the documents, how they were handled, and the policies and procedures pertaining to the handling of the documents. He asserted that the questions should be addressed at the hearing.
The hearing to reconstruct or settle the record proceeded on May 20, 2009, before Judge Fitzgerald. Attorneys for the People and defendant were present, as was Hankins, by then an investigator with the Riverside County District Attorney’s Office. The court denied defendant’s motions to have confidential and/or sealed information released to him and to have redacted copies of sealed documents released to him.
The People moved to have the court take judicial notice of documents sealed on June 29, 2004 and April 12, 2005. The motion was granted. The court informed counsel that it had opened both sets of sealed documents just prior to the hearing and had determined that the two sets of documents matched.
The People and defendant moved to have the court view and identify the single-page document that Judge Fitzgerald had discovered on April 12, 2005 and that was described in Galland III, supra, 45 Cal.4th 354, as “‘another piece of paper that was in another sealed envelope.’” (Id. at p. 363.) The court granted the motion. It informed counsel “that the single-page document... was in fact the single-page document that had been attached originally to what appear[ed] to be the original affidavit in support of search warrant.” “The single-page [was] entitled ‘Citizen’s Informant’.”
The court then convened an in camera hearing, at which Judge Fitzgerald, Hankins, a court reporter, and Court Clerk Betty Ard were present. Following the in camera hearing, the court denied defendant’s renewed request to review the sealed documents. It also denied defendant’s motion to call Hankins as a witness in open court. The court ordered the reporter’s transcript of the in camera hearing sealed. The court found that the copies of the search warrant affidavit contained in envelopes bearing June 29, 2004 and April 13, 2005 filing stamps, respectively, were duplicates of the original.
This court received the sealed reporter’s transcript, together with the sealed envelopes, for our review. The People and defendant each filed motions to augment the record on appeal and defendant filed motions to unseal records and to permit supplemental briefing. We granted the motions of the parties to augment the record with a reporter’s transcript and a clerk’s transcript of the nonconfidential portions of the May 20, 2009 proceedings and ordered the clerk of this court to transmit copies of those transcripts to the parties. We granted defendant’s motion to unseal the minute order contained in the clerk’s supplemental transcript of the April 12, 2005 authentication hearing and directed the clerk of this court to transmit copies of that minute order to the parties. We denied defendant’s motions to augment the record as to other items and to unseal other records. We granted defendant’s request for supplemental briefing as to two points: (1) the identification of issues remaining unresolved on appeal; and (2) any issues arising out of the most recent remand of this matter. The People and defendant each filed supplemental letter briefs.
II DISCUSSION
A. Introduction
With the extensive procedural history of this case, we pause to determine which issues remain unresolved. In his supplemental briefing, defendant vigorously maintains that the trial court failed to conduct the inquiry on remand properly. He insists that the court neither properly inquired into the preservation and destruction of the original search warrant affidavit nor obtained an explanation of what he describes as the “mystery document,” that is — the single-page document that Judge Fitzgerald discovered on April 12, 2005, also sometimes referred to as “‘another piece of paper that was in another sealed envelope.’” (Galland III, supra, 45 Cal.4th at p. 363.)
The People, on the other hand, contend there are now only two items left for handling. They urge that the reconstructed record is more than adequate for this court to perform a meaningful independent review, and that we should now determine whether the sealing of the affidavit was appropriate, whether the motions to quash and traverse the warrant were properly denied, and whether, under the totality of the circumstances, there was probable cause to conduct the search. They also say the knock-notice issues framed in defendant’s opening brief have not been addressed.
In addition to the foregoing, we have noticed two other issues that defendant raised in his opening brief, but which the parties have not mentioned in their supplemental briefs. Per his opening brief, defendant asserts that Hobbs, supra, 7 Cal.4th 948is unconstitutional, and also says that the abstract of judgment contains errors that need to be corrected.
We turn first to the issues raised in defendant’s supplemental briefs, concerning the court’s conduct of the proceedings on May 20, 2009. We will then turn to the issues left over from his original briefing on appeal.
B. Conduct of May 20, 2009 Proceedings on Remand:
The court in Galland III, supra, 45 Cal.4th 354 remanded “the matter to enable the superior court to conduct a full hearing to reconstruct or settle the record as to the missing original sealed search warrant affidavit.” (Id. at p. 373.) It instructed: “At that hearing, the superior court may consider all relevant matters, including the filed copy of the sealed affidavit as well as the five-page document and the additional piece of paper the superior court viewed at the prior hearing, and, if necessary, inquire into the circumstances under which the original affidavit was purged.” (Ibid.)
Defendant claims that the mandated full hearing “never happened.” Furthermore, because this court did not unseal the reporter’s transcript of the in camera proceedings, he speculates that Judge Fitzgerald conducted no inquiry whatsoever about the preservation and destruction of the original affidavit and the creation and handling of the mystery document. He is in error on both points.
As indicated above, counsel for both defendant and the People were present at the hearing. They engaged in substantial discussion with Judge Fitzgerald, who provided information to the parties about having reviewed the sets of sealed documents and determined that they were the same. He also informed the parties as to the nature of the “mystery document.” Furthermore, Judge Fitzgerald engaged in a lengthy examination in camera, including an examination into the handling of the original affidavit after it had been reviewed by the magistrate and into the creation and significance of the mystery document.
At the in camera hearing, Hankins confirmed that when he presented the search warrant application in 2001, he was working for the Buena Park Police Department. Upon questioning by Judge Fitzgerald, Hankins stated that he remembered the search warrant affidavit, inasmuch as he had kept a copy of it. Judge Fitzgerald opened the above-referenced envelopes. The first envelope bore a June 29, 2004 filing stamp, was marked “sealed (search warrant) information from 6-24-09 in-camera hearing” (capitalization omitted), and had attached a sticker stating: “Today 1-22 found this from clerk[’]s office special place for sealed files. Clerk opened sealed in my presence — never sent to DCA.” The second envelope bore an April 13, 2005 filing stamp and was marked “sealed per order from COA filed 4/7/05[;] search warrant affidavit[.]” (Capitalization and underlining omitted).
The June 29, 2004 envelope contained a copy of a four-page affidavit of Hankins. The first page was an unnumbered face sheet containing Hankins’s signature, dated August 17, 2001, and the signature of the judge, which was placed immediately below the order to secure the sealed portion of the warrant in the police department property room. The second, third and fourth numbered pages contained detailed information from the confidential informant. The fourth page was signed by Hankins, a deputy district attorney, and the magistrate. The date on page four was August 9, 2001. In addition, the June 29, 2004 envelope contained a single-page memorandum, dated August 6, 2001, providing information about defendant and about the confidential informant’s identity and request to remain anonymous.
Judge Fitzgerald handed the five pages to Hankins for review. Hankins confirmed that he recognized the documents. Upon questioning by Judge Fitzgerald, Hankins confirmed that the copies were “duplicates of the original affidavit in support of search warrant,” a copy of which he had retained himself. With respect to the fifth page, concerning the identity of the confidential informant, Hankins recollected the communication from the individual, saying, “Oh, yes. That’s part.” However, when asked specifically whether the fifth page was attached to the original affidavit, Hankins replied, “I don’t recall. It may have.” Judge Fitzgerald observed that, irrespective of whether the fifth page was attached when it was submitted to the magistrate, the four-page affidavit made references to the confidential informant.
The April 13, 2005 envelope contained a facsimile cover sheet dated March 9, 2005 from the Orange County District Attorney to this court, a Buena Park Police Department facsimile cover sheet dated November 6, 2001, an unsigned four-page affidavit in support of search warrant, statement of probable cause, and a copy of the single-page August 6, 2001 memorandum regarding the confidential informant. Attached to the copy of the August 6, 2001 memorandum was a note stating: “This is the ‘piece of paper’ that is mentioned in the 4-12-05 minutes. It is believed that this document may have been introduced at the 3-15-02 [hearing] and placed in a sealed, [confidential] envelope and filed in a secure location other than the court file. Other documents that were deemed [confidential] & not sealed were in the court file. M. Richards.” On the back of the envelope was the notation: “1-26-07: Envelope opened at the direction of Judge Makino to [determine] its contents[.] M. Richards.” M. Richards was a supervisor in the superior court clerk’s office.
Judge Fitzgerald asked Hankins to examine the four-page statement of probable cause. Hankins recognized it as a copy of the document that was contained in the June 29, 2004 envelope and had been presented to the magistrate for signature. When asked about the lack of signatures, Hankins explained that he kept copies of his search warrants on a disk or thumb drive, and those digital copies would not show signatures. However, he remembered that the document had been signed by both himself and the judge. Hankins testified that the signed version and the unsigned version of the document were duplicates of each other, (but for the presence or absence of signatures).
Hankins explained that the November 6, 2001 facsimile cover sheet was a request for information in the Galland case to be sent to the district attorney’s office. Upon examination of the single-page memorandum about the confidential informant, Hankins explained the item had been generated from a tip received by the Orange Police Department, and that he had used the information in that memorandum in his warrant application. Judge Fitzgerald remarked: “So the court can conclude from the post-it memo and this officer’s information that this rendition of a call to the Orange Police Department by the person [name omitted] is in fact the one-page mysterious document that everybody was concerned about.”
Judge Fitzgerald then inquired of Hankins as to the Buena Park Police Department policy to request the sealing and police retention of search warrant affidavits. Hankins explained that the decision was made on an individual basis. Hankins then gave specific information as to why he was concerned about security in this particular case. He also stated that after the magistrate authorized the affidavit to be retained by the police department, he personally took the affidavit to the police department for booking into the evidence locker room. He testified that he did not know when the original affidavit was destroyed and was unaware of any police department policy regarding the destruction of documents related to search warrants.
Judge Fitzgerald posed additional questions about the police department’s practices and procedures with respect to the storage and handling of search warrant affidavits. Hankins provided information concerning the place of storage and the persons who had access to the documents. In addition, he stated that he remembered bringing the original affidavit with him to court for the first hearing before Judge Fitzgerald. Judge Fitzgerald himself said that he remembered “that we made a copy of the original, which is either one of these two documents that we have today... and that I redelivered to you the original affidavit....” Hankins no longer had a specific recollection of taking the original affidavit back to the police department property room, but said it would have been his practice to do so.
In sum, Judge Fitzgerald did as he was told. He held a full hearing to reconstruct or settle the record and he provided this court with a sealed reporter’s transcript of the hearing. In carrying out the instructions given to him, he was permitted to inquire as to the circumstances under which the original affidavit was destroyed “if necessary.” (Galland III, supra, 45 Cal.4th at p. 373.) He was not required to do so. In any event, Judge Fitzgerald did pose questions on that topic, contrary to defendant’s assumption.
Nothing in Galland III, supra, 45 Cal.4th 354 required Judge Fitzgerald to read a list of more than two dozen questions, as posed by defendant, to Hankins. Even so, defendant asserts that the requirement is contained in Hobbs, supra, 7 Cal.4th 948. As Hobbs provides, with respect to an in camera hearing arising out of a noticed motion to quash or traverse a search warrant: “The prosecutor may be present at the in camera hearing; defendant and his counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. (See [Evid. Code,] § 915, subd. (b).) 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.” (Id. at p. 973.) Defendant claims this statement of law shows that Judge Fitzgerald was required to ask the questions he framed.
The in camera hearing held on May 20, 2009 was not a Hobbs hearing per se. It was a hearing to reconstruct or settle the record. Unlike a Hobbs hearing, where the purpose is to determine whether sufficient grounds exist to maintain the confidentiality of a confidential informant, the purpose here was to reconstruct or settle the record, as directed by the Supreme Court. To be sure, during the course of the in camera proceeding, which entailed an examination of copies of the affidavit and the single-page document memorializing the information received from the confidential informant, information about the confidential informant was again reviewed by both Judge Fitzgerald and Hankins and necessarily formed a part of their discussion. However, that does not mean that Judge Fitzgerald was undertaking a reconsideration of his prior ruling denying defendant’s motions to quash and traverse. To the contrary, before proceeding in camera, Judge Fitzgerald denied defendant’s request to reconsider, during the in camera review, whether any of the documents could now be disclosed given the passage of time.
As the foregoing shows, defendant erroneously surmised that the only possible explanation for this court’s failure to unseal the reporter’s transcript of the in camera hearing was that the in camera proceedings dealt exclusively with the confidential informant and did not in any way address the circumstances under which the affidavit was destroyed and the mystery document was created. As an aside, we note defendant cites no authority for the proposition that this court is required to provide him with a redacted version of the transcript that eliminates all references to the confidential informant.
We observe that the trial court followed the instructions from this court and the Supreme Court in terms of reconstructing the record. Substantial evidence supports the trial court’s findings that the contents of the June 29, 2004 and April 13, 2005 sealed envelopes were copies of the original search warrant affidavit that had been reviewed by the magistrate and also reviewed by Judge Fitzgerald at the June 29, 2004 in camera review. (Galland III, supra, 45 Cal.4th at pp. 370-371.) Given this, we have determined that the reconstructed record is adequate to permit a meaningful appellate review of defendant’s issues pertaining to the denial of his motions to quash and traverse. (See id. at p. 370 [re determination of adequacy of reconstructed record].) We turn now to the merits of the appeal.
C. Hobbs Issues:
(1) Introduction
In his opening brief, defendant raised many issues that have been resolved by the Supreme Court in Galland III, supra, 45 Cal.4th 354. We do not reiterate each of them here, but turn now to the remaining issues as framed in that brief. Defendant asserts that this court must determine whether the trial court, at the June 29, 2004 hearing, complied with the procedures set forth in Hobbs, supra, 7 Cal.4th 948, whether the affidavit was properly sealed, and whether the affidavit established probable cause for the issuance of the search warrant. He also contends that Hobbs is unconstitutional. We address these points in turn.
(2) June 29, 2004 hearing
At the June 29, 2004 hearing on remand after Galland I, supra, 116 Cal.App.4th 489, defendant and his counsel were present, as was counsel for the People. Affiant Hankins was present and had in his possession the sealed portion of the affidavit and the order directing it to be retained at the police department. The parties stipulated that Hankins “would testify, were he to take the stand, that this is the original sealed affidavit, that he has not altered it in any way, that the order from Judge Marion has not been altered in any way.” They also stipulated that Hankins would be able to lay the foundation to show “that the sealed portion is the exact sealed portion of the affidavit from the time in 2001.” The stipulation provided substantial evidence that the sealed affidavit Hankins transported to the June 29, 2004 hearing was the same affidavit he had presented to the magistrate. (Galland III, supra, 45 Cal.4th at p. 371.)
After the stipulation was entered, Judge Fitzgerald called Hankins into chambers. Hankins provided Judge Fitzgerald with the sealed portion of the affidavit and the order for that portion to be retained by the police department. Judge Fitzgerald reviewed the documents. He then ordered that they be copied for the court record, that the copy be sealed, and that the originals be returned to Hankins.
After the in camera review, Judge Fitzgerald informed the parties that he had reviewed the documents, had a brief conversation with Hankins, and ordered that the reporter’s transcript be sealed. He then stated his tentative ruling as follows: “I’ve reviewed the documentation and it’s appropriate for the Hobbs issues to continue; the court is tentatively denying your motion to quash and... [traverse] the search warrant.” Judge Fitzgerald then gave defendant an opportunity to be heard. After defendant made his arguments, Judge Fitzgerald entered the tentative ruling as the final ruling and denied the motions to quash and traverse.
Defendant complains that the court failed to comply with the procedures set forth in Hobbs, supra, 7 Cal.4th 948 because it did not: (1) interview any witnesses in camera; (2) ask Hankins any questions; (3) review the affidavit for any inconsistencies or insufficiencies pertaining to the showing of probable cause and inform the prosecution of any witnesses or materials it needed; (4) determine whether the totality of the circumstances demonstrated a fair probability that evidence of a crime would be found in the place searched in accordance with the warrant; or (5) generally, make any findings or perform the review required by Hobbs. Defendant errs in his assertion that Hobbs required the trial court to take each one of these actions. Hobbs, for example, states that it is within the court’s discretion “to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. [Citations.]” (Id. at p. 973.) However, Hobbs does not require the court to undertake those actions.
Where the implementation of the procedures set forth in Hobbs, supra, 7 Cal.4th 948 is concerned, the Supreme Court in Galland III, supra, 45 Cal.4th 354 has provided the following instructions: “When a defendant seeks to quash or traverse a warrant where a portion of the supporting affidavit has been sealed, the relevant materials are to be made available for in camera review by the trial court. [Citations.] The court should determine first whether there are sufficient grounds for maintaining the confidentiality of the informant’s identity. If so, the court should then determine whether the sealing of the affidavit (or any portion thereof) ‘is necessary to avoid revealing the informant’s identity.’ [Citation.] 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). [Citation.]” (Galland III, supra, 45 Cal.4th at p. 364.)
As defendant suggests, after the in camera hearing, the court in the matter before us was somewhat inarticulate with respect to its findings. However, it did state that it had reviewed the documents and had a discussion with Hankins. The court further stated that it was “appropriate for the Hobbs issues to continue” and denied the motions to quash and traverse. In other words, the court conveyed its conclusion that, under Hobbs, supra, 7 Cal.4th 948, the sealing of the affidavit was appropriate and continued to be appropriate and there were no grounds to quash or traverse.
True, the court did not specifically report out that there were grounds for keeping the informant’s identity confidential, that it was necessary to seal the affidavit in order to avoid revealing the identity of the informant, that under the totality of the circumstances there was a fair probability that evidence of a crime would be discovered in the place searched pursuant to the warrant, or that defendant’s allegations of material misrepresentations or omissions were unsupported. (Galland III, supra, 45 Cal.4th at p. 364; Hobbs, supra, 7 Cal.4th at pp. 974-975 [court should report conclusions to defendant].) However, we imply all findings necessary to support the judgment and determine whether substantial evidence supports the implied findings. (People v. Francis (2002) 98 Cal.App.4th 873, 877-878.) In this case, substantial evidence supports an implied finding on each of the enumerated points.
“We are satisfied that the trial court acted within its sound discretion in conducting its own in camera review of the sealed materials, affirming the magistrate’s determination that the sealing of the entirety of [the search warrant affidavit] was necessary to implement the People’s assertion of the informant’s privilege, and in thereafter denying defendant’s motions to traverse and quash the search warrant.” (Hobbs, supra, 7 Cal.4th at p. 976.) We have reviewed the materials contained in the envelope sealed at the conclusion of the in camera review on June 29, 2004. The information contained in the envelope shows that the informant had personal knowledge of defendant’s transportation of methamphetamine and possession of methamphetamine for sale and, further, that “‘disclosure of the contents of [the informant’s] statement would tend to disclose [his or her] identity....’ [Citations.]” (Id. at p. 962, fn. omitted.) The information also shows that “under the ‘totality of the circumstances’ presented in the search warrant affidavit... 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.’ [Citations.]” (Id. at p. 975.) “Finally, there is nothing in the sealed or public portions of the record to suggest that any misrepresentations, material or otherwise, were made by the affiant in applying for the search warrant.” (Id. at p. 977.)
We have also reviewed the materials contained in the sealed envelope filed on April 13, 2005. The contents of either envelope supports the trial court’s implied findings in this matter.
We note that the June 29, 2004 envelope, like the April 13, 2005 envelope, contains a copy of the August 6, 2001 memorandum regarding information from the confidential informant. Although by the time of the May 20, 2009 hearing, Hankins no longer remembered for certain if a copy of that memorandum was attached to the original affidavit when presented to the magistrate, we observe that the body of the affidavit itself, even were a copy of the August 6, 2001 memorandum not attached, contains ample evidence to support the ruling on defendant’s motions.
“A presumption of validity attached to the search warrant....” (Hobbs, supra, 7 Cal.4th at p. 977.) “The court was left with ‘the relatively uncomplicated task’ of deciding whether, based on the search warrant application and supporting affidavit and materials..., the affidavit failed to set forth sufficiently reliable and competent evidence to support the magistrate’s finding of probable cause to issue the warrant. [Citations.] We conclude, based on our review of the record and sealed materials, that it was not reasonably probable defendant could prevail on [his] motions to traverse or quash the search warrant[, and to suppress evidence]. The motions were therefore properly denied.” (Ibid.)
(3) Constitutionality of Hobbs procedure
Defendant contends Hobbs, supra, 7 Cal.4th 948 violates both the federal and state constitutions, inasmuch as it deprives a defendant of due process and the right to counsel. He explains that when the entire search warrant affidavit is sealed, the defendant and his counsel are completely precluded from challenging the truth or sufficiency of the claims contained therein. While he recognizes that this court is bound, under the principle of stare decisis, to follow Hobbs, he nonetheless asserts that the case was wrongly decided. We disagree.
The Supreme Court in Hobbs, supra, 7 Cal.4th 948 addressed “the inherent tension between the public need to protect the identities of confidential informants, and a criminal defendant’s right of reasonable access to information upon which to base a challenge to the legality of a search warrant.” (Id. at p. 957.) Indeed, in considering the matter, the court acknowledged: “Several courts have observed that ‘“[a] defendant who cannot view any [major portion] of the affidavit cannot make a judgment as to whether any [legal challenges to the validity of the search warrant] should be made”’; hence, the sealing of the majority or entirety of the search warrant affidavit ‘“leaves the defendant without an adversary before the court who can not only ascertain that the appropriate challenges are considered but also that the defense argument is vigorously and effectively pursued.”’ [Citations.]” (Id. at p. 964.)
The Hobbs court cited with approval People v. Castillo (1992) 80 N.Y.2d 578. (Hobbs, supra, 7 Cal.4th at p. 967.) “Rejecting defendant’s claim that ‘a suppression procedure conducted without his participation violate[d] his constitutional right to due process of law and the effective assistance of counsel,’ New York State’s high court explained that whether the defendant had an absolute right to participate in the pretrial suppression hearing ‘depends upon a sensitive balancing of a defendant’s right to participate in the defense and society’s need to encourage citizens to participate in law enforcement by granting them anonymity when necessary for their protection. [Citations.]’ [Citation.] The Castillo court reasoned: ‘Analysis starts by focusing on the nature of the proceeding for there is a fundamental difference between a trial to adjudicate guilt or innocence and a pretrial hearing to suppress evidence. The due process requirements for a hearing may be less elaborate and demanding than those at the trial proper. [Citations.] This is so because, as the [United States] Supreme Court has observed, at a pretrial hearing, “‘we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel [law] enforcement officers to respect the constitutional security of all of us under the Fourth Amendment.... If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.’” [Citations.]’ [Citation.]” (Id. at p. 968.)
The Hobbs court rejected the assertion that enforcement of a defendant’s constitutional rights could not “be entrusted to trial judges ‘who [might or might] not have the legal sophistication to recognize the nuances of criminal procedure absent the assistance and vigorous advocacy of defendant and [his or] her attorney.’” (Hobbs, supra, 7 Cal.4th at p. 970.) It stated: “‘Insofar as use of sealed affidavits is unavoidable, it is not unusual or inappropriate for the “burden” of protecting citizens’ rights to fall upon our judiciary, and trial courts, as always, retain broad discretion in weighing the government’s interests against defendant’s rights.’ [Citation.]” (Ibid.) It continued: “‘While some defense critics have been distrustful of any unilateral determination of materiality reached without participation by defense counsel, and have been critical of placing an additional burden of judicial investigation upon the trial judge, the United States Supreme Court in Taglianetti v. United States (1969) 394 U.S. 316, 317-318 [22 L.Ed.2d 302, 305, 89 S.Ct. 1099] held: “[W]e cannot hold ‘that the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court.’”’” (Hobbs, supra, 7 Cal.4th at p. 970.)
The issues defendant has raised were well considered by the Supreme Court in Hobbs, supra, 7 Cal.4th 948. Furthermore, as defendant well notes, we are indeed bound by the doctrine of stare decisis. (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193.)
D. Knock-Notice:
(1) Background
Defendant moved to suppress evidence based on Penal Code section 1538.5. Subdivision (a)(1)(B)(iv) thereof permits a defendant to move to suppress evidence obtained pursuant to a search warrant when the search was unreasonable because it was carried out in a manner that violated constitutional standards. Defendant’s motion to suppress evidence was based in part on the police department’s purported violation of the federal and state knock-notice requirements. On appeal, defendant renews his argument.
At the evidentiary hearing on the knock-notice issue, two Buena Park Police Department officers testified — Hankins and Daniel Binyon. Pursuant to the search warrant, approximately eight officers went to search defendant’s residence, a mobilehome, at about 9:20 p.m. Hankins estimated the size of the mobilehome to be approximately 75 by 45 feet. The officers were all wearing police uniforms. Hankins and Binyon each testified that Hankins knocked on the door at least three times, loudly, and yelled that the police were there with a search warrant, demanding entry. After about five seconds, having heard nothing inside the mobilehome, Hankins again knocked loudly, three times, and again yelled that the police, with a search warrant, were demanding entry. Hankins testified that about 15 to 20 seconds after he knocked the second time, he heard footsteps inside the residence, approximately 20 to 25 feet from the door, moving away from it. Both Hankins and Binyon testified that about 15 to 20 seconds after the second knock, Hankins directed Binyon to ram the door, and Binyon did so. All of the officers then entered the residence, where one woman was found.
Theresa Lynn Peak, a codefendant in the case who had pleaded guilty and was on probation at the time of the hearing, also testified. She said that she was in the mobilehome at the time the police entered. She had been in the bathroom, with the door open, and did not hear anyone at the door. She said she believed the bathroom was about 30 feet from the front door and she would have heard anyone knocking at the front door. However, she was totally surprised when the police entered.
At the conclusion of testimony, the court stated: “Discrepancy in the testimony is resolved in favor of law enforcement as opposed to a convicted criminal defendant in the same case.” We construe this statement as a finding that the events occurred as the police described, in other words: (1) Hankins knocked loudly at least three times and loudly announced the police presence and demand for entry pursuant to a search warrant; (2) Hankins waited at least five seconds before repeating the loud knock and announcement; (3) after the second knock and announcement, Hankins heard footsteps moving away from the front door; and (4) 15 to 20 seconds after the second knock and announcement, the police broke through the front door. On appeal, we determine whether these findings are supported by substantial evidence. (People v. Hoag (2000) 83 Cal.App.4th 1198, 1207.) Having concluded that they are, we “independently apply the pertinent legal principles to those facts to determine, as a matter of law, whether there has been an unreasonable search or seizure. [Citation.]” (Ibid.)
(2) Analysis
Penal Code section 1531 provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.” “An unreasonable delay in responding to a knock and announce is tantamount to a refused admittance. [Citation.]” (People v. Hoag, supra, 83 Cal.App.4th at p. 1207.) Defendant maintains that there was no refused admittance, express or implied. We disagree.
Here, Hankins knocked and yelled twice. He heard footsteps inside, so he knew someone was home. The footsteps were moving away from the door, not moving towards it as though someone were going to answer. The police waited a total of 20 to 25 seconds after the first knock before entering. Case law supports the determination that a failure to respond within 20 to 25 seconds, under the circumstances, was an implied refusal to permit entry.
In People v. McCarter (1981) 117 Cal.App.3d894, the police knocked loudly on the door. A woman on the opposite side of the door asked who was there. After the police identified themselves and informed the woman that they had a search warrant and demanded entry, the woman did not respond. After 20 to 30 seconds, the police broke open the door. (Id. at p. 903.) The court held that the woman’s failure to respond constituted refused admittance. (Id. at p. 906.) Defendant in the case before us says McCarter is distinguishable because the police in this case did not have a conversation with Peak before opening the door. While that is true, Hankins did hear footsteps inside, and they were moving away from the door, not towards it as if someone were intending to answer.
A case more nearly on point is People v. Nealy (1991) 228 Cal.App.3d 447, wherein the court held that a lapse of between 15 and 30 seconds between the first knock and the entry was tantamount to a refused admittance when the dwelling was a small apartment and the police had reason to believe that it was occupied. (Id. at pp. 450-451.) In Nealy, as in the case before us, no one inside responded to the police.
A wait of only 20 seconds between the knock and announcement and the entry was held to be refused admittance in People v. Elder (1976) 63 Cal.App.3d 731, at pages 736 and 739. Defendant in the case before us points out that in Elder, the investigator knew that illegal bookmaking activity was taking place inside the residence at the time of entry (id. at pp. 738-739), whereas in the case before us, there was no knowledge that illegal activity was taking place at the time. While that is so, in Elder, as in the case before us, the person demanding entry was aware that a person was inside, who was not responding to the demand for entry.
Furthermore, there is no bright line rule providing the exact length of time the police must wait in each case. (People v. Trujillo (1990) 217 Cal.App.3d1219, 1225.) Five or 10 seconds has been held to be too short a period in one circumstance. (Jeter v. Superior Court (1983) 138 Cal.App.3d934, 936-938 [no opportunity to respond].) Thirty seconds has been held to be sufficient time in another. (People v. Gallo (1981) 127 Cal.App.3d828, 839 [nonresponsive occupants visible to officer].)
“Twenty seconds would clearly be too short a wait... at a house of gargantuan proportions or during a time normally associated with sleeping....” (People v. Elder, supra, 63 Cal.App.3dat p. 739.) However, the police here “knew someone was in the house. Twenty seconds is not a flash of time allowing for no response at all. If an acknowledging voice from within had responded, 20 seconds may have been too short a time to wait. There was no such response.... [¶] Silence for 20 seconds where it is known that someone is within the residence suggests that no one intends to answer the door. Twenty seconds of silence may be sufficient in one case and insufficient in another.” (Id. at p. 739.) Something less than 20 seconds may even be sufficient. (See, e.g., People v. Hoag, supra, 83 Cal.App.4th 1198, 1202, 1211-1212 [15-20 seconds after first knock was substantial compliance]; People v. Trujillo, supra, 217 Cal.App.3dat pp. 1226-1228 [18 seconds after first knock was substantial compliance].)
Defendant in the case before us claims People v. Trujillo, supra, 217 Cal.App.3d1219 is on point, and in his favor. In Trujillo, a police officer knocked and announced. He heard “‘movement’ inside the apartment but could not describe it or attach any significance to it.” (Id. at p. 1224.) He knocked again, and about 18 seconds after the first knock, the police broke through the door. (Ibid.) The court said that, without evidence concerning the size and layout of the apartment, it was impossible to say whether the 18-second delay was long enough to permit the occupants to respond to the police at the door. However, it noted that “[t]he generic ‘movement’ heard by the officer, without more, [was] no manifestation of a refusal of entry. As the magistrate said, the sound ‘could be a dog.’” (Id. at pp. 1226-1227.) The court indicated that the evidence did not support a determination that the occupant[s] had refused entry. (Id. at p. 1227.)
Defendant stops here, and says People v. Trujillo, supra, 217 Cal.App.3d1219 shows that the generic movement Hankins heard was insufficient to establish an implied refusal. But in Trujillo, the officer could not describe the nature of the movement or ascertain its significance. (Id. at p. 1224.) In the matter before us, however, Hankins heard footsteps, that were proceeding away from the door. Where the generic movement in Trujillo was insufficient to indicate that a human being was inside, let alone to indicate whether the movement was proceeding towards or away from the door, in the case before us, Hankins perceived that a person inside was moving away from the door. This gave rise to an implication that the person was not intending to let the police in.
Moreover, defendant omits to mention that the court in People v. Trujillo, supra, 217 Cal.App.3d 1219 found that while there was a technical violation of the knock-notice requirement, there was nonetheless substantial compliance with it. (Id. at pp. 1227-1228.) “The essential inquiry is whether under the circumstances the policies underlying the knock-notice requirements were served. [Citation.] [¶] One of the policies implemented by requiring the police to knock and announce themselves and their purpose is to prevent injury to the police or citizens who would react aggressively to a surprise, unannounced entry.” (Id. at p. 1227.) “The other policy served by the requirement is to protect the privacy of occupants of residences.” (Ibid.) “While the case is a close one, we conclude, under all the circumstances, the police delayed entry long enough after knocking and announcing themselves and their purpose to protect [the occupant’s] reduced expectation of personal privacy, even though the delay was not long enough to amount to an implicit refusal of entry.” (Id. at p. 1228.)
In the case before us, the sealed search warrant affidavit disclosed information to the effect that defendant possessed methamphetamine for sale and also possessed firearms in his dwelling. Indeed, the property report filed after the search took place shows that both methamphetamines and multiple firearms were found inside.
Here, there was an extra layer of concern not present in People v. Trujillo, supra, 217 Cal.App.3d1219 — the potential danger arising from possible weaponry inside. “[A]lthough one purpose of the [knock-notice] requirement is to prevent startled occupants from using violence against unannounced intruders [citation], the delay caused by the statute might give a forewarned occupant exactly the opportunity necessary to arm himself, causing injury to officers and bystanders. [Citations].” (People v. Gonzalez (1989) 211 Cal.App.3d1043, 1048.) This concern is “particularly pressing in the context of narcotics cases. In these cases evidence is readily destroyed. Drug dealers are often well organized, sophisticated and armed.” (Id. at p. 1049.) “‘“[I]f an occupant is predisposed to resist an entry by police, a substantial delay between announcement and entry could only give him time to prepare.’” [Citation.]” (People v. Trujillo, supra, 217 Cal.App.3dat p. 1227.)
Under the totality of the circumstances, the knock-notice requirements were served in the case before us. We need not separately address defendant’s contention that exigent circumstances did not justify entry.
E. Abstract:
Finally, in his opening brief, defendant claims that the abstract of judgment contains errors that must be corrected. However, this matter has been addressed previously.
In Galland I, supra, 116 Cal.App.4th 489 we stated: “Galland and the People agree the abstract of judgment is incorrect. It fails to reflect the trial court’s order at the sentencing hearing to stay the sentence on count 2, and to strike the prior enhancements for sentencing purposes only. On remand, the trial court should make these corrections in the event the judgment is reinstated.” (Id. at pp. 495-496.)
At the conclusion of the June 29, 2004 hearing, the trial court ordered that the abstract of judgment be corrected.
Furthermore, in Galland II, supra, 146 Cal.App.4th 277 (revd. and cause remanded (2008) 45 Cal.4th 354), we stated that defendant’s request to correct the abstract was moot because the trial court had indicated that the correction had been made and we had no evidence showing otherwise. We reiterate. The matter is moot.
III DISPOSITION
The orders denying the motions to quash and traverse the search warrant and to suppress evidence were properly denied. The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.