Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC305190.
RUSHING, P.J.
Statement of the Case
Defendant Silvino Serpa pleaded guilty to possession of a controlled substance (methamphetamine) while armed with a loaded firearm and admitted that he had two strike convictions and had served a prior prison term. (Health & Saf. Code, § 11370.1; Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) Under the “Three Strikes” law, the court imposed a term of 25 years to life.
Defendant appeals from the judgment. (See Pen. Code, §1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b)(4)(A).) He claims the court erred in denying his motions to quash the search warrant and suppress evidence; and in connection with these motions, defendant claims the court abused its discretion in failing to personally interview a confidential informant. Defendant also claims the court erred in denying his motion to unseal a document on which the search warrant was based. Last, defendant claims the court erred in declining to dismiss at least one of his strike convictions.
We affirm the judgment.
Our factual summary is based on the probation report.
On February 19, 2003, officers of the Santa Clara County Specialized Enforcement Team (SCCSET) and the San Jose Police Department served a search warrant at 241 Sunnyslope Avenue in San Jose. They found surveillance equipment covering the front and back of the residence. When the officers approached Serpa and his wife, Frances Reyes, in the front yard, Reyes ran back into the house and locked the door. The officers entered by force and were confronted by a pit bull, which they shot. The officers then searched a converted garage area and found items indicating Serpa’s association with a gang called the Mongols. They also found 1.67 grams of methamphetamine, a digital scale, a surveillance monitor, and pay/owe ledgers. In a bedroom, they found more gang related material, a loaded handgun, and a surveillance camera. And in another room, they found more methamphetamine.
Francis Reyes was a codefendant.
Defendant’s daughter, who was present during the search, told the police that the gun belonged to defendant. She said that on a prior occasion, he had threatened to shoot her and her mother.
Denial of Motions to Quash and Suppress Evidence
Defendant contends that the search under the warrant violated his Fourth Amendment rights because the warrant was not supported by probable cause. Accordingly, he claims the court erred in denying his motions to quash the search warrant and suppress the evidence. We disagree.
Background
On February 18, 2003, Officer Matthew Frisby of the SCCSET applied for the search warrant. In his affidavit, Officer Frisby said he was currently investigating defendant for possession and sale of methamphetamine from 241 Sunnyslope Avenue in San Jose. Assisting Officer Frisby was a confidential informant, referred to as “X.” Based on information from X, Officer Frisby believed that defendant possessed methamphetamine for sale at that address. The information from X was related in Officer Frisby’s supplemental affidavit, referred to as “Exhibit A, ” and he requested that it be sealed to prevent the disclosure of X’s identity. That same day, the court issued the search warrant and sealed Exhibit A (See People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) [documents may be sealed to protect identity of informant who provides privileged information]; Evid. Code, §§ 1040-1042 [privilege concerning information from confidential informant].)
In October 2003, defendant and Reyes moved to unseal Exhibit A and suppress the evidence. They argued that unless X furnished the information with an expectation that it remain confidential and unless the information would reveal X’s identity, that information must be disclosed. They also argued that to properly rule on their motions, the court personally had to interview X.
Under the procedures set forth in Hobbs, supra, 7 Cal.4th 948, the court conducted an in camera hearing to review Exhibit A to determine whether there was probable cause for the search warrant. Thereafter, the court ruled that “there is no reasonable probability that the confidential informant is a material witness to the defendant’s [sic] guilt or innocence so that a non-disclosure would not deprive them of a fair trial.” Accordingly, the court denied the motion to unseal Exhibit A.
The court also denied the defendants’ motions to suppress. The court found that the affidavit and Exhibit A established probable cause for the search warrant. Moreover, the court could find “no evidence of any misrepresentations, any reckless disregard for the truth, [or] any known or intentional misstatements of fact.” Accordingly, the court found no need for further inquiry concerning whether there were misrepresentations or misstatements.
In April 2004, after the preliminary hearing, defendant filed motions to unseal Exhibit A, quash the search warrant, dismiss the case, and suppress the evidence. In connection with these motions, defendant claimed that the police had improperly withheld a portion of the police report in the case, which had been sealed. The prosecutor requested that the court review the sealed report in camera to determine whether it contained material exculpatory evidence.
In August 2004, the court heard all of the motions. Defendant urged the court to interview X. The court indicated that it would review Exhibit A and police report and interview Officer Frisby. It then conducted two in camera hearings.
In September 2004, the court filed its order denying all of the motions. The court found that Exhibit A provided probable cause for the search warrant. The court also found that the sealed police report “[did] not contain anything substantially different or anything the Defendants are entitled to review.” The court further ordered that both Exhibit A and the police report remain sealed to protect the informant’s identity because no portion could be disclosed without risking disclosure of the informant.
Discussion
In Hobbs, supra, 7 Cal.4th 948, 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 of the search warrant affidavit, or even the entire affidavit, may be sealed to protect the identity of a confidential informant. (Id. at pp. 955, 971-975.)
Under Hobbs, where the defendant moves to quash the search warrant, the trial court must conduct an in camera hearing. (Hobbs, supra, 7 Cal.4th at p. 972.) In that hearing, the court first determines whether sufficient grounds exist for keeping the informant’s identity confidential. If it finds so, the court then determines whether the entire search warrant affidavit, or any major portion of it, must remain sealed to avoid revealing that identity. (Ibid.)
The next step in the process depends on the nature of the motion brought by the defendant. (Hobbs, supra, 7 Cal.4th at p. 973.) If the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant, the court should proceed to determine whether there was probable cause to issue the warrant. (Id, at p. 975.)
Probable cause deals with the probability of criminal activity and “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty, ’ but the degree of suspicion that attaches to particular types of noncriminal acts.” (Illinois v. Gates (1983) 462 U.S. 213, 235, 244, fn. 13 (Gates).)
In determining whether to issue a warrant, the magistrate takes a “totality-of-the-circumstances” approach under which “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Gates, supra, 462 U.S. at p. 238.)
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) In doing so, we defer to the magistrate’s probable cause determination. (Gates, supra, 462 U.S. at p. 236.) Moreover, given the preference for warrants, we resolve any doubts concerning whether an affidavit demonstrates the existence of probable cause in favor of upholding the warrant. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)
We have reviewed Officer Frisby’s affidavit and Exhibit A and the sealed transcripts of the court’s in camera hearings. Without disclosing the information in Exhibit A or the testimony at the hearing, we find that the information in Exhibit A and the transcripts support the trial court’s implicit finding that X’s information was reliable. We further find that the information in Exhibit A established a substantial probability that evidence of a crime would be located at 241 Sunnyslope Avenue. Moreover, nothing in these documents suggests that Officer Frisby misrepresented any material facts in his affidavit. Thus, since the search warrant was supported by probable cause, we conclude that the trial court properly denied defendant’s motions to quash the warrant and suppress the evidence.
In their briefs, both parties agreed that to resolve defendant’s claims, this court had to review the sealed transcripts and Exhibit A. We granted a motion to augment the record to include both. Initially we received only the transcripts. The clerk was unable to locate Exhibit A. (Clerk’s Certificate, 7/5/06) Thereafter, we directed the trial court to determine whether Exhibit A was returned to police custody, and if so, to retrieve and authenticate it as the document it had reviewed, make a copy and seal it, and forward it this court. (See People v. Martinez (2005) 132 Cal.App.4th 233, 240 [endorsing such a procedure].) We have received the trial court’s response and a sealed copy of Exhibit A.
Denial of Motion to Unseal Exhibit A
Defendant challenges the denial of his motion to unseal Exhibit A and seeks de novo review of that ruling.
Under Hobbs, “all or any part of a search warrant affidavit may be sealed if necessary to implement the [informant’s] privilege and protect the identity of a confidential informant.” (Hobbs, supra, 7 Cal.4th at p. 971.) We review the entire affidavit, including the sealed portion, to determine whether valid grounds exist for maintaining the confidential informant’s identity. (See id. at pp. 973-974.)
Again, given our review of Exhibit A and the transcripts of the in camera hearings, we conclude that they contain facts sufficient to support the trial court’s findings that (1) X was not a material witness who could given evidence exonerating defendant; (2) X provided the information to Officer Frisby in confidence; (3) there were valid and sufficient grounds for maintaining the informant’s confidentiality; and (4) sealing of the affidavit was necessary in order to avoid revealing the informant’s identity. (Hobbs, supra, 7 Cal.4th at p. 973.)
Failure to Interview X
Defendant contends that court abused its discretion in declining to interview X before ruling on the motion to unseal Exhibit A. He argues that such an interview was necessary to determine that X existed and furnished the information in confidence.
In Hobbs, supra, 7 Cal.4th 948, the court explained that “because the defendant’s access to the essence of the affidavit is curtailed or possibly eliminated the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witnesses whose testimony it deems necessary to rule upon the issues.” (Id. at p. 973.) As the Attorney General correctly notes, this approach mirrors the policy enunciated in People v. Seibel (1990) 219 Cal.App.3d 1279, where the court concluded that the decision to interview a confidential informant was within the court’s discretion. (Id. at p. 1298; see Pen. Code, §1525, subd. (a) [in deciding whether to issue a warrant, magistrate “may” examine witnesses].)
The record demonstrates that the court was aware of its discretion to interview X, especially given defendant’s argument that an interview was necessary so that the court could establish that X existed, provided the information that Officer Frisby included in his affidavits, and did so with an expectation of confidentiality.
Having reviewed the transcript of the in camera hearing, which included a careful examination of Officer Frisby, we find no abuse of discretion. Again, Exhibit A and the officer’s testimony during the in camera hearing provided a credible factual basis for the court to find that X existed and X spoke to Officer Frisby in confidence and that sealing the documents was necessary to protect X’s identity. Thus, the court’s decision not to interview X was not arbitrary, capricious, or irrational. Thus, we conclude that the failure to interview X did not result in a miscarriage of justice. (See People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
Defendant’s reliance on Hobbs, supra, 7 Cal.4th 948, and cases cited therein, including People v. Castillo (1992) 607 N.E.2d 1050, and United States v. Moore (9th Cir. 1975) 522 F.2d 1068, is misplaced. Although in those cases, the court interviewed the confidential informant, none of them hold that a court must do so invariably. Nor do those cases suggest that the decision to conduct such an interview is not a matter within the court’s discretion. On the contrary, Hobbs clearly states that the decision is discretionary. (Hobbs, supra, 7 Cal.4th at p. 973.) Moreover, those cases do not convince us that in this case, the trial court could not determine whether Exhibit A should remain sealed without directly interviewing X.
Failure to Dismiss Strikes
Defendant contends that the trial court abused its discretion in declining to dismiss one or both of his prior strike convictions.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the Supreme Court held that the trial court has discretion under Penal Code section 1385, subdivision (a) to dismiss strike prior convictions in furtherance of justice. (Romero, supra, 13 Cal.4th at p. 504.) However, the court warned that such discretion is “limited.” (Id. at p. 530.) The trial court must consider both the constitutional rights of the defendant and the interests of society. (Ibid.) It may not dismiss a strike to accommodate judicial convenience, relieve court congestion, or respond to a guilty plea. (Id. at p. 531.) Nor may a court dismiss a strike because it disagrees with the harsh effects the three strikes law would have on the defendant and without first considering the defendant’s background, criminal history, and the nature of his present offense. (Ibid.)
For example, in People v. Williams (1998) 17 Cal.4th 148, the trial court dismissed one of the defendant’s strikes because it was 13 years old and after it, the defendant had not committed another violent crime. The Supreme Court held that the court had abused its discretion. (Id. at pp. 162-164.) It noted that the defendant had a 19-year criminal history, which included strike convictions for attempted robbery and rape as well as non-strike convictions for spousal battery, possession of firearms, and driving under the influence. The court explained that in exercising its discretion, the trial court should give no weight to “factors extrinsic to the [Three Strikes] scheme” and must accord “preponderant weight . . . to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Id. at p. 161.) The court opined that the critical determination is whether the defendant “may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.)
In People v. Carmony (2004) 33 Cal.4th 367, the Supreme Court further explained that “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Id. at p. 378.) In light of this presumption, an abuse of discretion in declining to dismiss a strike occurs only in “limited circumstances.” (Ibid.) For example, where the trial court is “ ‘unaware of its discretion’ to dismiss [citation]”; “where the court considered impermissible factors in declining to dismiss”; where application of the sentencing norms established by three strikes law produces “ ‘ “an arbitrary, capricious, or patently absurd” result’ under the specific facts of a particular case[]”; or “where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme, ” that is, where the relevant factors “manifestly support striking of a prior conviction and no reasonable minds could differ . . . .” (Ibid.)
On appeal, we presume the trial court acted to achieve legitimate sentencing objectives (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978), and therefore defendant bears the burden to show that the court’s decision not to dismiss one or both of his strikes was irrational or arbitrary. (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Barrera (1999) 70 Cal.App.4th 541, 554.)
Defendant claims that given the minor nature of his current offense, the fact that his strikes occurred in a single incident, the lack of other convictions for violent offenses, his age, his family connections and support, and his employment history, the trial court erred as a matter of law in determining that he came within the Three Strikes law.
Defendant notes that his two strikes for assault with a deadly weapon are over 10 years old and were part of a plea package with a drug case and a probation violation. He asserts that the two crimes arose from a single incident, during which he stabbed two people in self defense trying to break up a bar fight that he did not start. He conceded that he may have overreacted and used excessive force, but he points out that neither victim was permanently injured.
Defendant notes that he is 43 years old and has worked as an electrician his entire adult life. He was divorced but lived on and off with Frances Reyes, whom he intends to marry. He has three adult children, two step children, and grandchildren, whom he deeply cares for. He submitted numerous letters from his family members and friends attesting to his character and demonstrating the existence of a strong family and social support network.
Defendant admits that he has had a life-long drug problem. He asserts that except for his strike convictions, his other felony and misdemeanor convictions were not violent and mostly drug-related. He notes that he successfully completed parole and had not been arrested until this case.
Defendant also opines that his current crime was a minor offense involving a small amount of drugs found at Reyes’s house, and not at his house up the street. He notes that the current offense is also related to his drug abuse, and he accepted responsibility for the offense, including the drugs and loaded firearm, even though he did not bring the gun into the house, and it was not his. He notes that he did not use the firearm or engage in violence when he was arrested.
We note that, concerning the strike convictions, the record contains evidence that defendant did not act in self-defense but rather initiated the barroom fight. Moreover, the prosecutor noted that after the fight defendant fled; and when he was arrested six months later, he was carrying a concealed ice pick.
Although defendant attempted to distance himself from the house where the drugs were found, during their search, police found papers belonging to defendant in a dresser next to the bed. In the bedroom police also found Mongol-related papers and defendant’s clothes, including a Mongol vest. Defendant’s mail and his checkbook were at the house. Defendant also kept his motorcycle and tools in the house, and he had a private office there decorated with Mongol items. According to defendant’s daughter who lived there, the office was off-limits.
The circumstances surrounding the current offense reveal that the residence was fortified, and the arrest in this case was highly confrontational and required that the police use force to serve the search warrant and avoid harm from a pit bull. Moreover, despite the presence of a child, there were drugs and a loaded gun on the premises, and defendant’s status as an ex-felon prohibited him from possessing a firearm. According to defendant’s daughter, the gun belonged to defendant, and he had once used it to threaten her and her mother.
The record also reveals that after his arrest, defendant called Reyes numerous times, and he knew they were being monitored. During the calls, he and Reyes refer to the house as his house too. He also expressed violent anti-social feelings toward San Jose law enforcement officers, calling them “little punk pieces of shit, ” “queer, ” “garbage, ” “cowards, ” and “Fucking’ punk-ass motherfuckers, ” who would do anything for a donut. When Reyes told him that she had warned her daughter to ask police for badge numbers and cards if they ever jumped over the fence and came to the door, defendant responded, “Me, personally, I’d purchase another gun, and someone comes over my fence, I’d shoot ‘em right between the eyes. But that’s just me.” Concerning the day of the arrest, defendant again said that the officers “should have got something right between the pieces of shit’s fucking’ eyes.”
At the sentencing hearing, defendant apologized for his intemperate comments, claiming he was venting his anger because the police had shot the dog and broken things during their search.
Defendant’s criminal record reveals seven prior felony convictions and over 20 misdemeanor convictions, including four for battery. His current offense occurred around a year after his discharge from parole. Moreover, although defendant admitted having a drug problem and that most of his convictions were drug related, there is no evidence he availed himself of any opportunities for drug treatment.
At two hearings concerning whether to dismiss the strikes, the trial court rejected defendant’s claim that his strikes offenses involved self-defense and credited evidence indicating that he initiated the fight. Despite the small amount of methamphetamine seized by police, the court considered the current offense serious and indicative of potential danger to the public. The court noted the presence of fortifications, the surveillance cameras, the pay/owe sheets, the scale, and a loaded gun. The court also noted circumstances surrounding the arrest, including the fact that the police had to use force and violence.
The court found that defendant’s criminal activity had not ceased since the 1980’s and comprised seven prior felonies, including the two strikes for violent attacks involving great bodily injury, and 21 misdemeanors, including four batteries. The court also noted that despite the usual advisements given in connection with defendant’s felony convictions, he had possession of a gun in this case and later expressed to Reyes a willingness to get another gun.
The record supports that court’s discretionary decision, and we do not find that decision to be irrational or arbitrary. Nor do we find that as a matter of law, the circumstances and interests of justice establish that defendant’s life term is excessive punishment and that the court should have dismissed at least one of the strikes. In effect, defendant asks us to ignore the trial court’s analysis, reweigh the evidence de novo, and come to a different conclusion. However, that is not our role, and we decline to do so. (See People v. Garcia (1999) 20 Cal.4th 490, 503.)
Disposition
The judgment is affirmed.
The transcript of the in camera hearings of October 28, 2003, and August 20 and September 10, 2004 and the copy of Exhibit A are hereby ordered resealed and may not be viewed except upon the order of a court of competent jurisdiction.
WE CONCUR: PREMO, J., ELIA, J.
We are satisfied that it represents what the court considered in ruling on defendant’s motions. Accordingly, we reject defendant’s suggestion that he was deprived of an adequate appellate record.