People v. Galland, G034189 (Cal. App. 11/4/2009)

• Decision Date: 04 November 2009
• Docket Number: G034189
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ANDREW GALLAND, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ANDREW GALLAND, Defendant and Appellant.

G034189

Court of Appeals of California, Fourth Appellate District, Division Three

November 4, 2009

Appeal from a judgment of the Superior Court of Orange County, No. 01CF2350, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

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.

Not to be Published in Official Reports

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.)...