Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CC776425
Duffy, J.
This appeal arises from a conviction following the entry of a no contest plea by defendant Daniel James Hernandez to four felony counts, namely, two counts of possession of a controlled substance, i.e., methamphetamine and MDMA, possession of a firearm by a felon, and possession of ammunition by a felon. He also admitted allegations that he was armed with a firearm during the commission of the drug possession crimes, and that he had previously suffered a felony conviction for which he had served a prison term. Defendant entered this plea after the denial of his motion to suppress pursuant to Penal Code section 1538.5.
The controlled substance “3,4 methylene dioxy methamphetamine amphetamine... [is] also known as MDMA or by its street name, Ecstasy.” (People v. Nazem (1996) 51 Cal.App.4th 1225 1228.)
All further statutory references are to the Penal Code unless otherwise stated.
Defendant challenges the conviction, contending that the evidence used to secure it was the product of an unlawful search and seizure. He argues that the affidavit that was the basis for the issuance of a warrant to search his home was insufficient to establish probable cause. Defendant contends further that he is entitled to a review by this court of the sealed transcript of in camera proceedings conducted by the trial court in connection with defendant’s request for discovery of the identity of a confidential informant.
We conclude that there was probable cause for the issuance of the warrant and that the search of defendant’s residence was therefore lawful. We also find that the court below, after conducting an in camera hearing, did not abuse its discretion in denying defendant’s request for discovery of the identity of the confidential informant. Accordingly, we will affirm the judgment.
Defendant waived a preliminary hearing. The facts are thus taken principally from the search warrant affidavit that is the subject of defendant’s challenge on appeal.
A search warrant based upon the affidavit of Officer Brian Winco was signed by Superior Court Judge Paul Teilh on August 6, 2007. It authorized a search of the premises located at 696 Pinewood Drive, Apartment 4, San Jose (Pinewood home) and the person of defendant; the warrant specified property that included methamphetamine and drug paraphernalia.
Officer Winco had been with the San Jose Police Department for five years. He was a member of the Metro Unit assigned to the Bureau of Field Operations. Officer Winco had received police academy, field, and advanced training in the narcotics law enforcement field; participated in approximately 25 surveillance operations; personally managed at least five confidential informants; participated in the execution of at least 15 search warrants; participated in approximately 200 narcotics investigations (about 150 of which were methamphetamine-related); and qualified as an expert relating to methamphetamine offenses at least five times.
Officer Winco averred that he was investigating possession for sale of methamphetamine occurring at the Pinewood home and that a confidential informant, X, was assisting him in that investigation. Officer Winco did not wish to disclose the name of the informant because such disclosure would impair X’s future usefulness in law enforcement investigations; might lead to reprisals against X; and might deter other informants from cooperating with law enforcement. X had both prior felony convictions and pending felony charges, and “X’s expressed motivation in assisting [was] to mitigate X’s personal difficulties with legal authorities.”
X told Officer Winco that he/she knew a person identified as “BAM” who was selling methamphetamine in San Jose. X described “BAM” as an adult Hispanic male, approximately 5’6” tall and weighing approximately 250 pounds, with brown hair and brown eyes, and that X had seen “BAM” in possession of methamphetamine within the past two months.
After receiving this information from X and within 10 days of signing the affidavit, Officer Winco arranged for X to make “a controlled/supervised purchase of drugs in San Jose” (controlled buy). Officer Winco averred that he supervised a thorough search of X’s person; no contraband was found and X’s money was temporarily held by the police. After that search, Officer Winco gave X a quantity of money in order to purchase some methamphetamine. “X was under constant supervision until X arrived at [the Pinewood home]. Metro officers supervised the operation. [Officer Winco] observed X walk into the front door of the [Pinewood home]. After a short period of time, [Officer Winco] observed X walk out the front door of the [Pinewood home]. X was constantly supervised from the time X left [the Pinewood home] until Officer Carranza... met with X in his police vehicle. At that time, X gave Officer Carranza a quantity of methamphetamine which was subsequently given to [Officer Winco]. X said that [X] gave ‘BAM’ the money [Officer Winco] provided and ‘BAM’ gave X a quantity of methamphetamine. X was kept under constant surveillance during the operation except for the period of time that X was inside [the Pinewood home]. [¶] Officer Cebrian... Valtox tested the suspected substance and it tested presumptive-positive for methamphetamine.... X was again searched... and was found free of contraband and money.”
Officer Winco determined from the Criminal Justice Information Control (CJIC) that defendant had a prior conviction of possession of a firearm by a felon (§ 12021, subd. (a)(1)); had a listed address of 1737 Ross Circle, San Jose; and had a physical description “as already described above [in the affidavit].” Officer Winco obtained a Department of Motor Vehicles photograph of defendant and showed it to X. X positively identified defendant as the person he knew as “BAM” and the one who sold the methamphetamine to X.
The search was executed by the police on August 8, 2007. Immediately prior to the search, defendant was observed outside of the Pinewood home; he was detained in handcuffs. The search of the Pinewood home yielded a nine millimeter handgun, a handgun magazine containing nine millimeter ammunition, seven MDMA pills, and four bindles containing approximately 6.7 grams of methamphetamine. During the search, the police also found indicia of defendant’s occupancy in one of the bedrooms. Other persons present at the residence were defendant’s two minor children, their mother, and defendant’s mother.
PROCEDURAL BACKGROUND
Defendant was charged in a four-count information with possession of a controlled substance, namely, methamphetamine (Health & Saf. Code, § 11377, subd. (a)); possession of a controlled substance, namely, MDMA (ibid.); possession of a firearm by a felon (§ 12021, subd. (a)(1)); and possession of ammunition by a felon (§ 12316, subd. (b)). It was alleged further that in the commission of the drug possession crimes, he was armed with a firearm (§ 12022, subd. (a)(1)), and he had previously suffered a felony conviction for which he had served a prison term (§ 667.5, subd. (b)).
Defendant filed a motion to disclose the identity of the confidential informant. The People opposed the motion, and it was denied by the court on October 23, 2007.
Defendant thereafter filed a motion to quash and traverse the warrant pursuant to section 1538.5. Defendant requested that the court conduct an in camera hearing to ascertain “whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity....” He argued that the affidavit in support of the warrant was based upon hearsay information of the confidential informant, and that the information was unreliable because it was not corroborated and because the informant was a convicted felon who had pending felony charges against him/her. The motion included the supporting declaration of defense counsel which questioned whether on the day of the controlled buy, the confidential informant arrived at and departed from the Pinewood home by car, and, if so, whether the car was searched prior to the controlled buy. Counsel’s declaration contained information from two unsworn witnesses to the effect that they believed they knew the identity of X, and that, within 10 days of the issuance of the warrant, they had observed X driving to and departing from the Pinewood home alone in X’s Ford Explorer. The People opposed the motion, arguing that defendant was attempting to relitigate his prior, unsuccessful, motion to disclose the identity of the confidential informant, and had in any event failed to meet his burden in challenging the search warrant.
The court concluded that defendant had made a sufficient showing under the “relatively low threshold” required to justify an in camera hearing; accordingly, the court ordered that an in camera hearing be conducted to determine whether the confidential informant arrived at the Pinewood home by car, if so, whether the car was searched, and if such a search occurred, when it took place in relation to the confidential informant entering the residence for the controlled buy. The defendant submitted written questions for the court to ask at the in camera hearing, which took place on February 6, 2008. At a later hearing, the court recited that it had conducted the in camera hearing; ordered the reporter’s notes from that hearing sealed; noted that it had asked the questions posed by defense counsel except those for which objections were sustained; concluded that “the evidence that was presented [did] not support defendant’s allegations of material misrepresentations or omissions”; and concluded that defendant’s request for discovery should be denied. The clerk’s minutes further reflect that defendant’s motion to suppress was denied.
Defendant also sought the in camera hearing in order for the court to determine “whether the extent of the affidavit which is sealed in the present matter, is done so properly, and is necessary to preserve the informant’s identity.” It is apparent that the granting of an in camera hearing on this basis would have been without foundation, since the affidavit did not contain any information that was sealed.
On March 18, 2008, defendant pleaded no contest to each of the four counts charged in the information. Defendant also admitted the arming allegations and the allegation that he had previously suffered a felony conviction for which he had served a prison term. His plea was based upon the understanding that he would receive a two-year prison term. Thereafter, defendant was sentenced on count 1 for the midterm of two years, and received concurrent two-year sentences on counts 2 through 4. The court struck any additional punishment relative to the arming and prison prior enhancements, pursuant to section 1385.
Defendant filed a timely notice of appeal of the denial of the motion to suppress. The denial of a suppression motion may be challenged by an appeal from the judgment entered after defendant’s guilty or no contest plea. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
DISCUSSION
Our discussion of the standard of review here is applicable to the issue of whether there was probable cause for issuance of the search warrant as presented in section II, post. The standard of review in connection with the court’s order for an in camera hearing and its denial of defendant’s request for discovery is discussed in section III, post.
“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law,... is also subject to independent review.” (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.)
Based upon its factual findings, the trial court has the duty to determine whether “the search was unreasonable within the meaning of the Constitution.” (People v. Lawler (1973) 9 Cal.3d 156, 160.) This issue is a question of law. Therefore, we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.; People v. Leyba (1981) 29 Cal.3d 591, 597.) Under California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674; see also In re Lance W. (1985) 37 Cal.3d 873, 890.)
Our high court has explained the nature of the review of a trial court’s decision on a motion to suppress in the context—applicable here—of a challenge to the validity of a search warrant: “We summarize the relevant legal principles governing an appellate challenge to the validity of a search warrant and the search conducted pursuant to it. 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.] ‘The 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.’ (Illinois v. Gates [(1983) 462 U.S. 213], 238 [Gates].) In a pre-Proposition 8 case, we stated: ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant,... [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
The existence of probable cause for issuing a search warrant is measured by a “totality-of-the-circumstances approach.” (Gates, supra, 462 U.S. at p. 230.) “[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” (Id. at p. 232.) The level of proof required to establish probable cause in the issuance of a warrant is far different from the proof required in formal trials: “Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ [Citations.]” (Id. at p. 235.) The magistrate’s determination of probable cause is entitled to deferential review. (Id. at p. 236.) And “[d]oubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.]” (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278; see also People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)
II. Probable Cause for Issuance of Search Warrant
Defendant argues that the search and seizure of the controlled substances, weapon, and ammunition were unlawful because there was an absence of probable cause for the warrant’s issuance. (§ 1538.5, subd. (a)(1)(B)(iii).) Defendant contends that “the information in the officer’s affidavit... pertaining to [defendant] rested entirely on the uncorroborated hearsay information provided by a confidential informant. Officer Winco’s affidavit clearly shows that he did absolutely no corroboration of the alleged criminal activity assertedly witnessed by the informant,...” (Original italics.) For the reasons below, we reject defendant’s challenge.
We acknowledge that information provided by a police informant must “be viewed with extreme caution.” (People v. Kurland (1980) 28 Cal.3d 376, 392.) There is a distinction recognized in the law between information supplied to the police by a disinterested citizen and that given by an informant. As our high court in Kurland has explained, “The rule that the affiant must demonstrate a tipster’s probable reliability or credibility arises not only from the usual distrust of hearsay evidence but also from an assumption that information provided by customary police sources is inherently suspect....” (Id. at p. 392.)
Although the principle that a police tipster’s information must be viewed with mistrust cannot be denied, we observe that in People v. Kurland, supra, 28 Cal.3d 376, the court articulated the two-prong “Aguilar-Spinelli test”—based on Aguilar v. Texas (1964) 378 U.S. 108, and Spinelli v. United States (1969) 393 U.S. 410—then applicable to reviewing probable cause determinations of magistrates issuing search warrants. (People v. Kurland, supra, at pp. 392-393.) The United States Supreme Court subsequently rejected the Aguilar-Spinelli approach in determining the existence of probable cause for issuance of the warrant—which had looked at the veracity of the informant and the basis for the knowledge of the information provided—in favor of a totality-of-circumstances review of the affidavit. (Gates, supra, 462 U.S. at pp. 230-231.)
Corroboration of information supplied by an untested informant is essential where the potential issuance of a search warrant is founded on it, although such corroboration need not be in any particular form (People v. Clark (1992) 3 Cal.4th 41, 141), and it need not be all-encompassing. As explained by one court, “The purpose served by corroboration is ‘to establish that the information provided by the informant did not constitute a made-up story, one fabricated out of whole cloth. Corroboration of part of the information provided by the informant [gives] credibility to the remainder of the information.’ [Citation.] It is sufficient that an informant’s statements are corroborated in a number of key respects, and a piecemeal approach is not required. [Citation.]” (People v. Rochen (1988) 203 Cal.App.3d 684, 689, quoting People v. Medina (1985) 165 Cal.App.3d 11, 20; see also People v. Johnson (1990) 220 Cal.App.3d 742, 749 [corroboration of tipster’s information “sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant”], disapproved on another ground in People v. Camarella (1991) 54 Cal.3d 592, 606, fn. 6.) However, such corroboration, to be adequate in supporting probable cause, should pertain to the criminal activity alleged, rather than merely concern the suspect generally. (People v. Johnson, supra, at p. 749; see also People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264.)
Moreover, the veracity of an untested informant is not a matter to be considered in a vacuum in determining whether the information contained in the affidavit is sufficient to support a magistrate’s finding of probable cause for the issuance of a warrant. “While an informant’s veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report, these elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case, but understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place.” (People v. Terrones (1989) 212 Cal.App.3d 139, 146, citing Gates, supra, 462 U.S. at p. 230.) In other words, “the reliability of an informant is now just one factor to consider in assessing probable cause....” (People v. Mayer (1987) 188 Cal.App.3d 1101, 1116, citing Gates, supra, 462 U.S. at p. 233.)
In this instance, contrary to defendant’s assertions, Officer Winco obtained corroboration for some of the critical information—i.e., matters pertaining to alleged criminal activity (possession and sale of methamphetamine)—supplied by the confidential informant, X. The informant initially told Officer Winco that he/she knew a person, “BAM,” who was selling methamphetamine in San Jose and that “BAM” had been in possession of methamphetamine within the past two months. Based upon this information, Officer Winco arranged for X to perform a controlled buy of drugs. In that controlled buy, the officer—by thorough searches of X conducted prior to and after the transaction and by constant surveillance of X—made certain that the contraband ultimately found on X’s person after completion of the operation was traceable to a sales transaction occurring in the Pinewood home. The controlled buy transaction, of itself, constituted corroboration by the police of information supplied by the confidential informant regarding alleged criminal activity. The controlled buy thus constituted “[c]orroboration of part of the information provided by the informant... [that] g[a]ve credibility to the remainder of the information.” (People v. Medina, supra, 165 Cal.App.3d at p. 20.)
Defendant asserts, however, that the controlled buy did not constitute sufficient corroboration of the information received from the confidential informant because, inter alia, the transaction was not adequately monitored by the police. He contends that because the police did not physically observe X perform the controlled buy inside the Pinewood home, the transaction can be given little credence as corroboration for X’s claim that he/she had bought methamphetamine from “BAM” in the past and had done so during the controlled buy. In making this argument, defendant ignores the evidence in the affidavit that favored the conclusion that the controlled buy demonstrated that a methamphetamine sale transpired in the Pinewood home—the evidence being the continuous monitoring of X and the thorough search conducted by the police of X before and after the transaction. (See People v. Watson (1979) 89 Cal.App.3d 376, 385 [witnessing of a controlled purchase of drugs can provide sufficient probable cause for a search].)
Further, defendant argues that the controlled buy as described in the affidavit is of little significance because (1) it cannot be determined how X arrived at the Pinewood home, (2) a “logical interpretation... is that the informant drove there,” and (3) [i]t would have been all too easy for the informant to secrete narcotics in [the informant’s] vehicle and later state that the narcotics were purchased from [‘BAM’].” This argument is based on speculation as to what may have occurred. As such, it cannot serve as a basis for attacking the sufficiency of the affidavit or the magistrate’s finding that the information contained in it established probable cause for the warrant’s issuance. (People v. Frank (1985) 38 Cal.3d 711, 729 [“court cannot resort to facts outside the affidavit to determine whether it furnishes” probable cause for issuance of warrant].)
Defendant also contends that the affidavit was insufficient because it did not adequately link defendant himself to criminal activity. He argues that X did not provide an adequate description of the person he/she knew as “BAM”; the affidavit did not provide any specifics about the level of “BAM’s” drug trafficking or the manner in which it was accomplished; Officer Winco did not provide any information as to how he concluded that “BAM” was defendant; and there was no mention as to how the police concluded that defendant resided at the Pinewood home. From these claimed failings, defendant argues that the information in the affidavit did not provide a sufficient basis for the conclusion that it was defendant who was involved in criminal activity at the Pinewood home. Defendant’s argument, however, misses the mark. The affidavit was sufficient—irrespective of whether Officer Winco corroborated that defendant resided at the Pinewood home, or that it was defendant who was “BAM” who was engaged in illegal activity—because it contained corroboration through the controlled buy that illegal activity (i.e., drug trafficking) was occurring at the Pinewood home. The affidavit thus provided probable cause that something in particular—methamphetamine—was located on the property. “ ‘The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific “things” to be searched and seized are located on the property to which entry is sought.’ [Citation.]” (People v. Frank, supra, 38 Cal.3d at pp. 728-729, quoting Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556.)
Defendant relies heavily on People v. Hernandez (1994) 30 Cal.App.4th 919 (Hernandez) in support of his contention that there was no probable cause for the warrant’s issuance. Hernandez does not compel us to conclude that the magistrate erred here in issuing the warrant. As explained in the later case of People v. Ledesma (2003) 106 Cal.App.4th 857, 865, “Hernandez suppressed evidence found during the execution of a search warrant because the affidavit failed to establish a sufficient nexus between the residence searched and criminal activity. ([Hernandez, supra,] at p. 924.) According to the affidavit, the officers observed a known narcotics dealer park a particular Camaro behind the residence on one occasion. During a narcotics transaction, the officers saw the dealer driving a particular Oldsmobile, and, weeks later, they also saw this car parked behind the residence. No information was provided as to whether the dealer ever owned the residence or received mail there or even entered it. No information was presented that the dealer owned either the Camaro or the Oldsmobile. (Id. at pp. 923-924.) On this basis, the court refused to find that the presence of the two cars justified a conclusion by the magistrate that there was a fair probability that the place to be searched contained contraband. (Id. at pp. 924-925.)”
Hernandez is distinguishable. There, the affidavit provided no direct evidence that the residence to be searched was the site of illegal drug activity, and the court properly concluded that the presence of drug dealers’ automobiles outside of the residence did not provide probable cause to search the residence. In contrast, here, the affidavit presented evidence through the controlled buy that illegal activity (i.e., the sale of methamphetamine) was occurring inside the Pinewood home. The magistrate thus properly concluded, based upon “a practical, common-sense decision..., given all the circumstances set forth in the affidavit before him,... there [was] a fair probability that contraband or evidence of a crime [would] be found in a particular place.” (Gates, supra, 462 U.S. at p. 238; see also People v. Kraft, supra, 23 Cal.4th at p. 1040 [probable cause determination by reviewing court “is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing”].)
The information received by the police from the confidential informant, X, was corroborated in a material respect through the controlled buy. Because corroboration of a tipster’s information in a search warrant affidavit need not assume any particular form (People v. Clark, supra, 3 Cal.4th at p. 141), and need not be all-encompassing (People v. Rochen, supra, 203 Cal.App.3d at p. 689), we find the corroboration here sufficient. In reaching this conclusion, we are mindful that “[t]echnical requirements of elaborate specificity” are not required in search warrant affidavits (Gates, supra, 462 U.S. at p. 235), and that the magistrate’s determination of probable cause is entitled to deferential review (id. at p. 236). A review of the totality of the circumstances presented by the affidavit of Officer Winco therefore causes us to conclude that the magistrate here had a substantial basis for finding the existence of “a fair probability that contraband [methamphetamine] or evidence of a crime [ongoing drug sales operation would] be found” at the Pinewood home. (Gates, supra, 462 U.S. at p. 238.)
III. In Camera Hearing Concerning Defendant’s Discovery Request
Defendant argues that he is entitled to appellate review of the sealed transcript from the in camera hearing conducted by the court below in connection with his request for discovery of the identity of the confidential informant. The Attorney General responds that defendant is not entitled to such appellate review, arguing that the court erred in holding the in camera hearing because defendant failed to make the requisite threshold showing to obtain the hearing. Alternatively, the Attorney General contends that the court did not abuse its discretion in denying defendant’s request for discovery after holding the in camera hearing.
In People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger), our high court fashioned rules, including providing for an in camera hearing, governing discovery of information relating to misstatements or omissions in a search warrant affidavit, where that affidavit relied on a confidential informant for its probable cause showing. After noting that it was inappropriate to order “an in camera hearing and discovery based on nothing more than a [criminal defendant’s] conclusory assertion of need for the discovery” (id. at pp. 20), the court held: “To justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant. [Citation.]... Thus, before an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability or the information he furnished. [Citations.]” (Id. at pp. 21-22.) Thus, “[t]o obtain an in camera hearing... the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination.” (Id. at p. 23.) The trial court’s determination as to “whether to convene an in camera examination or to order discovery will remain a matter within the trial court’s discretion. [Citations.]” (Id. at p. 21.)
The Luttenberger court delineated further the procedure to be followed by the court in the event it determined that an in camera hearing was appropriate. It explained, “Once this preliminary showing is made, the trial court should determine, in its in camera examination of the police records specified by the defendant, whether the defendant’s allegations of material misrepresentations or omissions are supported by the requested materials. If the trial court decides the documents do not support defendant’s charges of misrepresentation, the court should report only this conclusion to the defendant, and should not order production of any of the reviewed materials. [Citations.]... [¶] If, on the other hand, the court finds the requested documents contain information that tends to contradict material representations made in the affidavit, or constitutes material omissions from it, then it should order disclosure of the documents to the defendant.... ” (Luttenberger, supra, 50 Cal.3d at p. 24.)
Here, the court concluded that defendant had made a sufficient threshold showing warranting an in camera hearing. Even were we to disagree with this finding—and that denial of an in camera hearing would have therefore been warranted—we cannot say that the court abused its discretion by holding such a hearing. (Luttenberger, supra, 50 Cal.3d at p. 22; see also People v. Estrada (2003) 105 Cal.App.4th 783, 796.) We therefore reject the Attorney General’s contention that the court erred in ordering the in camera hearing. However, we agree with the Attorney General concerning the merits of the discovery motion. After our review of the transcript of the in camera hearing—in the context of the papers filed in support of and in opposition to defendant’s motion and the warrant affidavit itself—we readily conclude that the trial court did not abuse its discretion by denying defendant’s motion for discovery of the identity of the confidential informant. (Luttenberger, supra, at p. 22.)
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.