P. v. Guzman

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Filed 8/4/15 P. v. Guzman CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS MACIAS GUZMAN,
Defendant and Appellant.
A140435
(Solano County
Super. Ct. No. FCR289829)
INTRODUCTION
Following a search of his home pursuant to a search warrant, defendant Jesus
Macias Guzman was charged with, and eventually convicted by a jury of, receiving a
stolen motorcycle that was discovered by Vacaville police officers in his dining room.
Pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) defendant now asks
this court to: (1) conduct an in camera review of the sealed portion of the search warrant
to determine whether the trial court erroneously denied his motions to unseal and to
quash the search warrant; (2) reverse his conviction because he was not present at the
trial court’s in camera review; and (3) modify the assertedly “vague and overbroad”
condition of probation that defendant have no contact with two named victims. The
Attorney General agrees that our independent review of the sealed material is
appropriate, including the transcript of the in camera hearing. Having conducted our
review, and finding no error or abuse of discretion, we affirm the judgment. We decline
to modify the probation condition because it is not vague or overbroad.

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FACTUAL AND PROCEDURAL BACKGROUND
In September 2013, defendant went to trial on a consolidated information charging
three counts of receiving stolen property in violation of Penal Code section 496d,
subdivision (a)1: 1) a stolen motorcycle in October 2011; 2) a stolen motorcycle in
December 2011; and 3) a stolen license plate in December 2011. He was convicted on
count 1, acquitted on count 3, and a mistrial was declared on count 2 after the jury could
not reach a verdict. The prosecutor subsequently dismissed count 2 in exchange for
defendant agreeing to execute a Harvey2 waiver. The court suspended imposition of
sentence, and placed defendant on probation for three years, with conditions including
that he serve 120 days in jail, and that he have no contact with the two named victims in
this matter.
We need not discuss the evidence at trial, because most of the appeal turns on
what happened before trial in connection with the execution of a search warrant on
October 25, 2011. This search warrant led to the discovery of a motorcycle in
defendant’s dining room that was the basis for the single count of conviction.
A portion of the affidavit in support of the search warrant (Appendix A) was
sealed by the magistrate. Defendant made a motion to unseal the confidential portion of
the search warrant. The court conducted an in camera review of the sealed search
warrant affidavit, and denied the motion to unseal on July 19, 2012. Defendant
subsequently moved to quash the search warrant pursuant to section 1538.5 on the ground
that there was no probable cause. This motion was also denied. This appeal followed.
DISCUSSION
A. The Search Warrant
At defendant’s request, we have reviewed the sealed attachment to the affidavit
(Appendix A), as well as the sealed transcript of the in camera hearing held pursuant to
Hobbs. The trial court did not err.
1 All statutory references are to the Penal Code.
2 People v. Harvey (1979) 25 Cal.3d 754

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In essence, the search warrant authorized a search of defendant, a specific
apartment in Vacaville at 490 Markham Avenue, and a specific vehicle associated with
defendant. The warrant was based on the affidavit of probable cause attested to by
Vacaville Police Detective Jason R. Johnson. The affidavit stated that defendant was the
subject of a narcotics investigation over the last year, including a prior search warrant
that had been served on defendant on September 15, 2011, as he sat outside 490
Markham Avenue. At that time, a cell phone was on the ground next to where defendant
was sitting when he was detained; he tried to step on it to break it. No contraband was
found, but defendant’s cell phone was examined and found to contain text messages
consistent with the sale of controlled substances, including methamphetamine and pills.
At that time, defendant denied selling methamphetamine, but admitted using it. He also
admitted that he lived at 490 Markham Avenue, in apartment 2. Defendant’s truck
wasn’t present when the September 2011 warrant was served.
Detective Johnson stated in his affidavit that during the last several months
preceding the search warrant now at issue in this matter, he had received information
from two confidential informants (CI’s) that defendant was selling methamphetamine.
CI-1 purchased methamphetamine from defendant within the 10 days that preceded
Johnson’s affidavit. CI-1 also described defendant’s pick-up truck (which matched the
features of defendant’s truck as Johnson knew it), identified defendant’s pickup truck
near 490 Markham Avenue, and said defendant hid methamphetamine in the truck. CI-1
positively identified defendant from a known DMV photo of defendant. CI-1 was
providing information for consideration in a pending criminal matter, and Johnson had no
information CI-1 was unreliable. CI-2 provided information that defendant was selling
methamphetamine, that defendant lives in an apartment complex on Markham Avenue,
and that CI-2 purchased methamphetamine from defendant within the three weeks
preceding Johnson’s affidavit. CI-2 was also providing information for consideration in
a pending criminal matter, and Johnson had no information CI-2 was unreliable.
Johnson’s affidavit referred to additional probative information in an attached
“Appendix ‘A’ ” to the affidavit, which the magistrate had ordered sealed.

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The Affidavit Was Properly Sealed.
Our Supreme Court in Hobbs has set forth a procedure by which a search warrant
affidavit, or, as here, a portion of one, may be sealed to protect the confidentiality of an
informant’s identity: “The Legislature and the courts have also sanctioned the procedure
of sealing portions of a search warrant affidavit that relate facts or information which, if
disclosed in the public portion of the affidavit, will reveal or tend to reveal a confidential
informant’s identity. The materials, usually sealed by the magistrate at the time the
search warrant is signed and issued, are then made available for in camera review by the
trial court in connection with any motion brought to challenge the warrant’s validity or
discover whether the informant is a material witness to defendant’s guilt or innocence.
[Citations.]” (Hobbs, supra, 7 Cal.4th at p. 963.)
“The court must first determine whether a valid basis exists to exclude the
informational materials from the ‘public’ portion of the search warrant application, i.e.,
determine whether disclosure of those materials would compromise the confidentiality of
the informant’s identity. Any portions of the sealed materials which, if disclosed, would
not reveal or tend to reveal the informant’s identity must be made public and subject to
discovery by the defense. [Citation.]” (Hobbs, supra, 7 Cal.4th at p. 963.)
Here, after defendant made his motion to unseal, the trial court reviewed the entire
affidavit at an in camera hearing, and determined that Appendix A had been properly
sealed. We have reviewed Appendix A, and the in camera hearing transcript, and agree.
It would tend to reveal the identity of the CI’s.
The Affidavit, in its Entirety, Establishes Probable Cause to Search.
We next consider the motion to quash. “[I]f the affidavit is found to have been
properly sealed and the defendant has moved to quash the search warrant (Pen. Code,
§ 1538.5), 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. [Citations.]”
(Hobbs, supra, 7 Cal.4th at p. 975.)

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The trial court here followed the proper procedure. Our independent review of the
record, including the sealed portions, confirms the trial court’s determination that under
the totality of the circumstances, there was probable cause to issue the search warrant.3
It Was Not Error to Exclude Defendant and his Attorney From the
In Camera Hearing.
Defendant contends that the Hobbs procedure itself violated his Sixth Amendment
right to counsel and his Fourteenth Amendment right to present a defense, because
neither he nor his attorney were permitted to be present at the in camera hearing.
Defendant candidly acknowledges that the trial court and this court are bound by Hobbs,
which flatly rejects his claim. (Hobbs, supra, 7 Cal.4th at p. 973 [“[t]he 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”].) We need say no more.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“decisions of
this court are binding upon and must be following by all the state courts of California”].)
B. Probation Condition
As a condition of probation, the trial court ordered defendant to have no contact
with the two victims in this case, who were identified by the trial court at the sentencing
hearing, and in the written order, by name.4 At the time the condition was imposed, the
trial judge noted that he did not know if one of the victims (identified as the motorcycle
owner) was “even local anymore.” In response to the trial court’s question, the
prosecutor stated that the defendant and the victims had no relationship and did not know
each other.
3 The sealed Appendix A to Johnson’s affidavit of probable cause, and the
transcript of the in camera hearing on the motion to unseal the warrant, were not part of
the record on appeal. We requested augmentation of the record to include them, and they
are filed in this court under seal.
4 The written minute order and order of probation, signed by the court, defendant,
and his interpreter, states: “have no contact with the victims in this case” and then
identifies the two victims by name.

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Defendant now contends that this probation condition is “vague and/or overbroad
because appellant does not know the victims. . . . Since appellant does not know the
victims in this case, and saw them only briefly during their testimony, appellant could
encounter the victims without recognizing them and have accidental contact with them
without knowing that he was in violation of the probation condition. Thus, appellant
could violate the condition without knowing he was violating it.” Defendant urges us to
modify his probation term to prohibit him from having “knowing” contact with the
victims. The Attorney General does not object.
We have previously discussed constitutional challenges to conditions of probation
in In re Victor L. (2010) 182 Cal.App.4th 902. “Under the void for vagueness doctrine,
based on the due process concept of fair warning, an order ‘ “must be sufficiently precise
for the probationer to know what is required of him, and for the court to determine
whether the condition has been violated.” ’ ([In re] Sheena K. [(2007)] 40 Cal.4th [875,]
890.) The doctrine invalidates a condition of probation ‘ “ ‘so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application.’ ” ’ (Ibid.) By failing to clearly define the prohibited conduct, a vague
condition of probation allows law enforcement and the courts to apply the restriction on
an ‘ “ ‘ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.’ ” ’ (Ibid.)” (In re Victor L. supra, 182 Cal.App.4th at p.
910.)
“In addition, the overbreadth doctrine requires that conditions of probation that
impinge on constitutional rights must be tailored carefully and reasonably related to the
compelling state interest in reformation and rehabilitation.” (In re Victor L., supra, 182
Cal.App.4th at p. 910.)
As our colleagues in Division 1 recently catalogued, “[c]onditions determined to
be unconstitutionally vague include those that restrict otherwise lawful activity by
broadly prohibiting ‘association with certain categories of persons, presence in certain
types of areas, or possession [or use] of items that are not easily amenable to precise
definition.’ ([People v.] Moore [(2012)] 211 Cal.App.4th [1179,] 1185.) The concern

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with broadly prohibiting probationers from otherwise lawful conduct involving these
categories is that the prohibitions may fail to give adequate notice of what probationers
are supposed to be doing.” (People v. Hall (2015) 236 Cal.App.4th 1124, 1129.)
The probation condition of which defendant complains is neither vague nor
overbroad. It clearly gives defendant notice of the names of two people with whom he
must have no conduct. These two people testified against him at trial. This condition is
in stark contrast to a probation condition that a defendant not associate with anyone
disapproved of by a probation officer, where a defendant truly might not have knowledge
of which persons fit into that category. (See In re Sheena K., supra, 40 Cal.4th at p. 892
[approving appellate court’s insertion of qualification that defendant have knowledge of
who was disapproved by probation officer, “and thus securing the constitutional validity
of the probation condition”].)
Further, “the implied mens rea of willfulness must be established to find a
probation violation, and this protects [defendant] from being punished for an unwitting
failure to comply with a condition.” (People v. Hall, supra, 236 Cal.App.4th at p. 1136.)
For all of these reasons, the request to modify the probation condition on appeal is
denied.
DISPOSITION
The judgment is affirmed.

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_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.

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