People v. Downey CA2/2 ( 2020 )

Filed 10/2/20 P. v. Downey CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B291436
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089166)
v.
JAMES J. DOWNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Hayden A. Zacky, Judge. Affirmed.
Sylvia Eva Ronnau and Eric E. Reynolds, under
appointments by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
James J. Downey appeals the judgment entered following a
jury trial in which he was convicted of possession of an assault
weapon in violation of Penal Code1 section 30605, subdivision (a).
The trial court suspended execution of a three-year prison
sentence and placed appellant on formal probation for three years
with conditions that he serve 365 days in county jail, pay various
fines and fees, and submit to searches of his electronic
information.
Appellant contends: (1) California’s complete ban on
semiautomatic rifles with no exception for in-home self-defense
violates the Second Amendment, rendering appellant’s conviction
unconstitutional; (2) the electronics search probation condition
imposed by the trial court is unreasonable, and trial counsel was
ineffective for failing to object to it; and (3) the court’s imposition
of a restitution fine and court facilities and government
operations fees without a determination of appellant’s ability to
pay violates appellant’s constitutional rights under People v.
Dueñas (2019) 30 Cal. App. 5th 1157. We disagree and affirm the
judgment of conviction. Appellant also requests that this court
review the sealed portion of the search warrant affidavit to
determine whether the trial court properly denied appellant’s
motion to quash and traverse the search warrant. However,
appellant’s failure to present an adequate record forecloses
review of the trial court’s denial of the motion on appeal.
FACTUAL BACKGROUND
On June 20, 2017, around 4:40 a.m., Los Angeles Police
Officer Jose Lopez along with several other officers executed a
search warrant at appellant’s residence. The officers were
1 Undesignated statutory references are to the Penal Code.
2
looking for illegal assault weapons, such as AR-15’s and AK-47’s,
as well as narcotics.
Inside the home, officers found nine firearms, including a
Norinco 56S semiautomatic assault rifle. The Norinco 56S is a
Chinese “knock-off” of the AK-47. The Norinco was not loaded,
but officers found 337 rounds of ammunition for it, as well as
directions for converting it into a fully automatic rifle.2
During an interview with police, appellant stated he had
inherited the assault rifle from his grandfather, he had never
taken it outside the house, and he had never fired the weapon.
DISCUSSION
I. Appellant’s Second Amendment Challenge to
His Conviction Has Been Forfeited and Lacks
Merit
Appellant was convicted under section 30605,
subdivision (a), which prohibits possession of any assault weapon
in the State of California. The Norinco 56S model of firearm
found in appellant’s possession is statutorily enumerated as a
prohibited assault weapon. (§ 30510, subd. (a)(1)(B).) Appellant
contends that California’s ban on semiautomatic rifles such as
the Norinco 56S without an exception for in-home self-defense
violates the Second Amendment. Appellant’s failure to raise the
claim below forfeits his challenge on appeal. In any event, the
argument lacks merit.
2 Officers also found a glass pipe containing a substance
resembling crystal methamphetamine, but appellant was charged
only with the firearm offense.
3
A. The claim is forfeited
“As a general rule, only ‘claims properly raised and
preserved by the parties are reviewable on appeal.’ ” (People v.
Smith (2001) 24 Cal. 4th 849, 852.) “ ‘Ordinarily, a criminal
defendant who does not challenge an assertedly erroneous ruling
of the trial court in that court has forfeited his or her right to
raise the claim on appeal.’ ” (People v. McCullough (2013) 56
Cal. 4th 589, 593, quoting In re Sheena K. (2007) 40 Cal. 4th 875,
880.) This rule of forfeiture applies to any sort of right, including
a constitutional right. (In re Sheena K., at pp. 880–881, quoting
United States v. Olano (1993) 507 U.S. 725, 731 [“ ‘ “a
constitutional right,” or a right of any other sort, “may be
forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction
to determine it” ’ ”].)
Appellant did not raise his Second Amendment challenge in
the trial court. He neither asserted nor presented any evidence
to support the claim he makes on appeal that he possessed the
assault rifle for in-home self-defense. He also failed to argue and
presented no evidence to support the assertion that such weapons
are not dangerous or unusual because “[m]illions of Americans
keep semi-automatic rifles” for lawful purposes. Appellant has
forfeited the issue.
B. Appellant’s Second Amendment challenge fails
In any event, we reject appellant’s challenge on its merits.
(See People v. Frederickson (2020) 8 Cal. 5th 963, 1031 (conc. opn.
of Liu, J.) [courts “regularly excuse forfeiture where the
defendant has asserted the deprivation of a fundamental
constitutional right”].)
4
The Second Amendment to the United States Constitution
provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” (See District of Columbia v. Heller
(2008) 554 U.S. 570, 576 (Heller).) In Heller, the Supreme Court
held that although “the Second Amendment conferred an
individual right to keep and bear arms,” that right was not
unlimited. (Id. at p. 595.) Indeed, “[f]rom Blackstone through
the 19th-century cases, commentators and courts routinely
explained” that the Second Amendment right is “not a right to
keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” (Id. at p. 626; People v.
Zondorak (2013) 220 Cal. App. 4th 829, 832 (Zondorak) [Second
Amendment’s protections are not unlimited and “do not extend to
any type of weapon”]; People v. James (2009) 174 Cal. App. 4th
662, 674 (James) [same].)
Heller concerned the District of Columbia’s total ban on
handgun possession in the home and a prohibition against
rendering any lawful firearm in the home operable for the
purpose of immediate self-defense. The Supreme Court held both
restrictions violated the Second Amendment.3 (Heller, supra, 554
U.S. at p. 635.) However, the court concluded that “those
weapons not typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns” are excluded from
Second Amendment protection. (Id. at p. 625.) And recognizing
3 While the Supreme Court held in McDonald v. City of
Chicago (2010) 561 U.S. 742, 791 (McDonald), that “the Second
Amendment right recognized in Heller” also applies to the States,
the Court did not otherwise expand or contract the substantive
scope of the Second Amendment right acknowledged in Heller.
5
that “the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons’ ” places an “important
limitation on the right to keep and carry arms,” Heller also
indicated that “weapons that are most useful in military
service⎯M-16 rifles and the like⎯may be banned.” (Id. at
p. 627; see Zondorak, supra, 220 Cal.App.4th at p. 834 [Heller
“specifically referenced M-16 rifles as weapons that could
properly be banned without offending the Second Amendment”];
James, supra, 174 Cal.App.4th at p. 676 [as Heller makes clear,
“the Second Amendment right does not protect possession of a
military M-16 rifle”].)
Heller also did not foreclose the possibility of other
constitutional prohibitions on the possession of particular
firearms. “Heller does not purport to define the full scope of the
Second Amendment” (Friedman v. City of Highland Park (7th
Cir. 2015) 784 F.3d 406, 410), and the high court has declared
that the Second Amendment “does not imperil every law
regulating firearms.” (McDonald, supra, 561 U.S. at 786; Heller,
supra, 554 U.S. at pp. 626–627 & fn. 26.) Indeed, as the court in
Friedman cautioned, “courts should not read Heller like a statute
rather than an explanation of the Court’s disposition,” pointing
out that Heller’s language “is precautionary: it warns against
readings that go beyond the scope of Heller’s holding that ‘the
Second Amendment creates individual rights, one of which is
keeping operable handguns at home for self-defense.’ ”
(Friedman, at pp. 409–410; United States v. Skoien (7th Cir.
2010) 614 F.3d 638, 640.)
Following Heller, the Court of Appeal in James held that
possession of an assault weapon in California is not protected by
the Second Amendment. (James, supra, 174 Cal.App.4th at
6
p. 664.) Echoing the Legislature’s concerns, the court explained
that “[a]n assault weapon ‘has such a high rate of fire and
capacity for firepower that its function as a legitimate sports or
recreational firearm is substantially outweighed by the danger
that it can be used to kill and injure human beings.’ ” (Id. at
p. 676, quoting former § 12275.5, subd. (a), reenacted as § 30505,
subd. (a) without substantial change.) Declaring “[t]hese are not
the types of weapons that are typically possessed by law-abiding
citizens for lawful purposes such as sport hunting or self-defense;
rather, these are weapons of war,” the James court concluded
that assault weapons are excluded from Second Amendment
protection under Heller. (James, at p. 676; see Zondorak, supra,
220 Cal.App.4th at p. 836.)
Like appellant here, the defendant in Zondorak contended
that California’s ban on AK series rifles violates the Second
Amendment because it provides no exception for possession in
the home for self-defense. Zondorak rejected the contention,
noting, “other courts have acknowledged that ‘it cannot be the
case that possession of a firearm in the home for self-defense is a
protected form of possession under all circumstances. By this
rationale, any type of firearm possessed in the home would be
protected merely because it could be used for self-defense.
Possession of machine guns or short-barreled shotguns—or any
other dangerous and unusual weapon—so long as they were kept
in the home, would then fall within the Second Amendment. But
the Supreme Court has made clear the Second Amendment does
not protect those types of weapons.’ ” (Zondorak, supra, 220
Cal.App.4th at p. 837, quoting United States v. Marzzarella
(3d Cir. 2010) 614 F.3d 85, 94.) Accordingly, “when a weapon
falls outside the class of weapons entitled to Second Amendment
7
protections, neither the place in which it is stored nor the
purposes for which it might be used imbues the weapon with
Second Amendment protections.” (Zondorak, at p. 837.)
Citing Caetano v. Massachusetts (2016) __ U.S. __ [136
S. Ct. 1027, 1031 (conc. opn. of Alito, J.), appellant asserts that a
weapon falls outside of Second Amendment protection only if it is
both dangerous and unusual, and argues that a weapon that
many law-abiding Americans possess cannot be deemed “a
‘dangerous and unusual’ weapon in a constitutional sense.”
(Kolbe v. Hogan (4th Cir. 2017) 849 F.3d 114, 152 (dis. opn. of
Traxler, J.).) Appellant thus contends that James and Zondorak
were wrongly decided because “[m]illions of Americans keep
semi-automatic rifles and use them for lawful, non-criminal
activities,” making them “typical weapons that ‘law-abiding
citizens’ possess.”
The argument fails. Appellant has presented no evidence
or empirical support for his claim that millions of law-abiding
citizens possess and use semiautomatic weapons for lawful
purposes. Instead, he merely points out that California is in a
small minority of states to regulate or ban semiautomatic assault
weapons, and he cites two federal appellate courts’
conclusions⎯based on evidence and expert testimony presented
in those cases⎯that these weapons are in “common use.” (See,
e.g., Heller v. District of Columbia (D.C. Cir. 2011) 670 F.3d 1244,
1261 (Heller II) [“Approximately 1.6 million AR-15s alone have
been manufactured since 1986, and in 2007 this one popular
model accounted for 5.5 percent of all firearms, and 14.4 percent
of all rifles, produced in the U.S. for the domestic market”]; New
York State Rifle & Pistol Ass’n v. Cuomo (2d Cir. 2015) 804 F.3d
242, 255 (Rifle & Pistol Ass’n) [“This much is clear: Americans
8
own millions of the firearms that the challenged legislation
prohibits”].)
Even assuming widespread production and possession of
certain semiautomatic rifles, appellant offers no support for his
assertion that these are typical weapons that law-abiding
Americans possess and use for lawful purposes, including self-
defense in the home.4 Thus, on this record, there is simply no
reasoned basis on which to reject the James and Zondorak courts’
conclusions that Heller’s exclusion of machine guns and M-16-
type weapons from Second Amendment protection also applies to
the semiautomatic assault rifles listed in section 30510 that are
banned under California law.
4 In the cases appellant cites, the courts did not decide, but
simply “assume[d] for the sake of argument that these ‘commonly
used’ weapons and magazines are also ‘typically possessed by
law-abiding citizens for lawful purposes.’ ” (Rifle & Pistol Ass’n,
supra, 804 F.3d at p. 257 [“In short, we proceed on the
assumption that these laws ban weapons protected by the Second
Amendment”]; Heller II, supra, 670 F.3d at pp. 1261–1262, 1264
[“based upon the record as it stands, we cannot be certain
whether these weapons are commonly used or are useful
specifically for self-defense or hunting,” but assume prohibitions
of certain semiautomatic rifles “impinge upon the right protected
by the Second Amendment”]; see Worman v. Healey (1st Cir.
2019) 922 F.3d 26, 36 [“we simply assume, albeit without
deciding, that the Act burdens conduct that falls somewhere
within the compass of the Second Amendment”].)
9
II. Appellant Forfeited Any Challenge to the
Electronics Search Condition, and His
Ineffective Assistance of Counsel Claim Fails
As one of his conditions of probation, the trial court
required appellant to “submit [his] person and property to search
and seizure at any time . . . , with or without a warrant, probable
cause, or reasonable suspicion, including but not limited to, [his]
. . . electronic information.” Appellant did not object to the
electronics search condition below.
Appellant now argues for the first time that the probation
condition is unreasonable under People v. Lent (1975) 15 Cal. 3d
481 (Lent) because it is unrelated to the offense of possession of
an assault rifle for which appellant was convicted, it does not
concern conduct that is itself unlawful, and it bears no relation to
future criminality. (Lent, at p. 486; In re Ricardo P. (2019) 7
Cal. 5th 1113, 1118.) According to appellant, the trial court
abused its discretion in imposing the search condition, and it
should be stricken. (People v. Moran (2016) 1 Cal. 5th 398, 403
(Moran) [conditions of probation reviewed on appeal for abuse of
discretion].)
However, “[a]s a rule, failure to object to a probation
condition in the trial court on standard state law or
reasonableness grounds forfeits the claim for appeal.” (Moran,
supra, 1 Cal.5th at p. 404, fn. 7; People v. Welch (1993) 5 Cal. 4th
228, 237 [failure to timely challenge probation condition on Lent
grounds in trial court forfeits claim on appeal].) Appellant’s
failure to raise any objection to the conditions of his probation
forfeits his challenge to the electronics search condition here.
Appellant seeks to avoid forfeiture by asserting that
because there could have been no tactical basis for the failure to
10
object to the probation condition, his trial counsel was ineffective.
Appellant has failed to show he received ineffective assistance of
counsel.
“An ineffective assistance claim has two components: A
[defendant] must show that counsel’s performance was deficient,
and that the deficiency prejudiced the defense. [Citation.] To
establish deficient performance, a [defendant] must demonstrate
that counsel’s representation ‘fell below an objective standard of
reasonableness.’ ” (Wiggins v. Smith (2003) 539 U.S. 510, 521;
Strickland v. Washington (1984) 466 U.S. 668, 687–688
(Strickland); In re Gay (2020) 8 Cal. 5th 1059, 1073.) We assess
independently the mixed questions of law and fact presented in
determining whether counsel’s performance was deficient and
whether any deficiency prejudiced defendant. (In re Gay, at
p. 1073.)
But “ ‘[u]nless a defendant establishes the contrary, we
shall presume that “counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or
failed to act in the manner challenged,” an appellate claim of
ineffective assistance of counsel must be rejected “unless counsel
was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If
a defendant meets the burden of establishing that counsel’s
performance was deficient, he or she also must show that
counsel’s deficiencies resulted in prejudice, that is, a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” ’ ” (People v.
11
Bell (2019) 7 Cal. 5th 70, 125–126 (Bell); see Strickland, supra,
466 U.S. at pp. 687–688, 694.)
Although the record in this case does not reveal an explicit
explanation for counsel’s failure to object to the electronics search
condition, appellant is nevertheless incorrect in his assertion that
there could be “no rational basis for counsel’s lack of objection
under the circumstances of the case, given the current legal
landscape regarding electronics searches.”5
In his affidavit in support of the search warrant in this
case, Officer Lopez stated, “it is your affiant’s expert opinion that
illegal firearms, including . . . assault rifles, along with
methamphetamine are being stored and trafficked from the
location to be searched.” Officer Lopez sought “the court’s
permission to search any cell phones at the location,” on the
ground that, “[b]ased on prior investigations and through
information received from fellow narcotics officers, your affiant is
aware that it is common practice for persons engaged in the illicit
sales of narcotics . . . to be contacted by narcotic distributors
and/or sales associated [sic] via telephone.” Among other things,
the search warrant authorized the seizure of cell phones.
Given that appellant’s use of his cell phone was considered
an integral aspect of the criminal activity which prompted the
5 Appellant’s reference to the “current legal landscape
regarding electronics searches” appears to refer to our Supreme
Court’s decision in In re Ricardo P., supra, 7 Cal.5th at
pages 1119, 1122, which invalidated an electronics search
condition under Lent. However, Ricardo P. was decided well
after appellant’s June 29, 2018 sentencing hearing, and thus did
not represent the legal landscape when the trial court imposed
the electronics search condition here.
12
search of his residence,6 defense counsel could reasonably have
concluded that the trial court would overrule any objection to the
electronics search condition in this case. Defense counsel does
not render ineffective assistance in failing to raise a meritless
objection. (Bell, supra, 7 Cal.5th at p. 127; People v. Thompson
(2010) 49 Cal. 4th 79, 122 [“Counsel is not ineffective for failing to
make frivolous or futile motions”].) Appellant’s ineffective
assistance of counsel claim therefore fails.
III. Appellant’s Dueñas Claim Lacks Merit
Appellant contends the trial court’s imposition of
restitution and parole revocation fines as well as the criminal
conviction assessment and the court security fee was
unconstitutional under Dueñas, supra, 30 Cal. App. 5th 1157,
which was decided after the sentencing hearing in this case. He
6 In this regard, In re Ricardo P. is readily distinguishable
from the instant case. In Ricardo P., after admitting two counts
of felony burglary, the juvenile court placed defendant on
probation with the condition that he submit to warrantless
searches of his electronic devices. The Supreme Court affirmed
the judgment of the Court of Appeal in striking the electronics
search condition under Lent on the grounds that it had no
relationship to the burglaries of which defendant was convicted,
it pertained to conduct that was not itself criminal, the condition
was not reasonably related to future criminality, and “the burden
it impose[d] on [defendant’s] privacy [was] substantially
disproportionate to the countervailing interests of furthering his
rehabilitation and protecting society.” (In re Ricardo P., supra,
7 Cal.5th at pp. 1118–1119, 1122.) Here, by contrast, the
electronics search condition of appellant’s probation was directly
related to the criminal activity that resulted in his conviction and
the possibility of future criminality.
13
thus asserts he is entitled to remand to enable the trial court to
determine his ability to pay. We reject the claim.
The trial court imposed the fines and assessments (without
objection by appellant) before Dueñas was decided. We decline to
extend Dueñas’s broad holding beyond the extreme facts in that
case, which are not present here. Dueñas was a disabled,
unemployed, and often homeless mother of two young children.
Over the course of several years she served jail time because she
could not pay the fines imposed in connection with various
misdemeanor vehicle offenses. (Dueñas, supra, 30 Cal.App.5th at
pp. 1160–1162.) Applying a due process analysis to the
particular facts before it, the appellate court concluded that
“[b]ecause the only reason Dueñas cannot pay the fine and fees is
her poverty, using the criminal process to collect a fine she
cannot pay is unconstitutional.” (Dueñas, at p. 1160.)
This case plainly does not implicate the same due process
concerns at issue in the factually unique Dueñas case. At the
time of sentencing, appellant was 48 years old and he owned a
business building motorcycles. Unlike Dueñas, appellant does
not face incarceration because of an inability to pay court-
imposed fines, fees, and assessments. (See Dueñas, 30
Cal.App.5th at p. 1163.)
In People v. Hicks (2019) 40 Cal. App. 5th 320, 322, 329
(Hicks), review granted November 26, 2019, S258946,7 we
7 The California Supreme Court ordered briefing deferred
pending decision in People v. Kopp, S257844, which presents the
following issues:
14
concluded that Dueñas was wrongly decided and rejected its
holding that “due process precludes a court from ‘impos[ing]’
certain assessments and fines when sentencing a criminal
defendant absent a finding that the defendant has a ‘present
ability to pay’ them.” (Accord, People v. Petri (2020) 45
Cal. App. 5th 82, 92; People v. Aviles (2019) 39 Cal. App. 5th 1055,
1067–1068; People v. Caceres (2019) 39 Cal. App. 5th 917, 923,
926–927; People v. Kingston (2019) 41 Cal. App. 5th 272, 279–282
(Kingston); People v. Kopp (2019) 38 Cal. App. 5th 47, 96–97,
review granted Nov. 13, 2019, S257844.)
Here, as in Hicks, “imposition of these financial obligations
has not denied [appellant] access to the courts,” nor has their
imposition resulted in his incarceration. (Hicks, supra, 40
Cal.App.5th at p. 329.) And nothing prevents appellant from
trying to satisfy these obligations while he is on probation. (Id. at
pp. 327, 329.) If they remain unpaid at the end of the
probationary period, it will be up to the trial court to determine
at that time whether nonpayment was due to appellant’s
indigence or to a lack of bona fide effort. (Id. at p. 329.)
Moreover, the restitution fine is classified as a form of
punishment. (People v. Souza (2012) 54 Cal. 4th 90, 143.) Its
“(1) Must a court consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments? (2) If
so, which party bears the burden of proof regarding the
defendant’s inability to pay?” (People v. Hicks, S258946,
[as of Apr. 20, 2020], archived at
.)
15
imposition without regard to present ability to pay therefore does
not violate appellant’s due process rights because it is “not a user
fee imposed on court access.” (People v. Son (2020) 49
Cal. App. 5th 565, 592.) As the United States Supreme Court has
recognized, due process is implicated only where a defendant,
who has no ability to pay, is imprisoned for failure to pay a
punitive fine.8 (See Bearden, supra, 461 U.S. at pp. 665, 667–
668; Tate v. Short (1971) 401 U.S. 395, 398 [“ ‘the Constitution
prohibits the State from imposing a fine as a sentence and then
automatically converting it into a jail term solely because the
8 As the United States Supreme Court has explained, the
distinction between probationers who shirk their financial
obligations from those who are wholly unable to pay “is of critical
importance.” (Bearden v. Georgia (1983) 461 U.S. 660, 668
(Bearden).)
“If the probationer has willfully refused to pay the fine or
restitution when he has the means to pay, the State is perfectly
justified in using imprisonment as a sanction to enforce
collection. [Citation.] Similarly, a probationer’s failure to make
sufficient bona fide efforts to seek employment or borrow money
in order to pay the fine or restitution may reflect an insufficient
concern for paying the debt he owes to society for his crime. In
such a situation, the State is likewise justified in revoking
probation and using imprisonment as an appropriate penalty for
the offense. But if the probationer has made all reasonable
efforts to pay the fine or restitution, and yet cannot do so through
no fault of his own, it is fundamentally unfair to revoke probation
automatically without considering whether adequate alternative
methods of punishing the defendant are available. This lack of
fault provides a ‘substantial [reason] which [justifies] or
[mitigates] the violation and [makes] revocation inappropriate.’ ”
(Bearden, supra, 461 U.S. at pp. 668–669.)
16
defendant is indigent and cannot forthwith pay the fine in
full’ ”].)
Finally, the fines and fees imposed in this case are not
excessive. Appellant possessed an illegal assault rifle and
hundreds of rounds of ammunition for that weapon, creating an
inherent risk to public safety. A $300 fine and $70 in
assessments are not “grossly disproportional to the gravity of
[his] offense.” (United States v. Bajakajian (1998) 524 U.S. 321,
334.)
IV. The Inadequate Record on Appeal Forecloses
Review of the Trial Court’s Denial of
Appellant’s Motion to Traverse and Quash the
Search Warrant
In issuing the search warrant for appellant’s residence in
this case, the magistrate ordered that a confidential attachment
to the warrant be sealed under Evidence Code section 1041 to
protect the identity of a confidential informant. (People v. Hobbs
(1994) 7 Cal. 4th 948, 971 (Hobbs).) Before trial, appellant filed a
motion to unseal, quash, and traverse the search warrant. The
People filed a written opposition.
Asserting that the trial court “apparently” denied the
motion, appellant requests this court to review the search
warrant affidavit to determine whether the trial court properly
denied appellant’s motion to quash and traverse the warrant.
The augmented record on appeal, however, includes only the
moving and opposition papers. It does not contain the minute
order from any hearing on the motion, nor does it include a
reporter’s transcript of any such hearing. In short, appellant has
provided this court with nothing to review.
17
We would ordinarily review the trial court’s denial of a
motion to unseal the affidavit and to quash and traverse a search
warrant for abuse of discretion. (Hobbs, supra, 7 Cal.4th at
p. 976; Davis v. Superior Court (2010) 186 Cal. App. 4th 1272,
1277.) That is, we would review the record to determine whether
the trial court acted within its discretion in considering the
motion, conducting its own in camera review of the sealed
materials, and reviewing the magistrate’s determination that
sealing of the affidavit was necessary to implement the
informant’s privilege. (Hobbs, at p. 976.) Here, because
appellant has failed to provide any record to permit review of his
claim, the claim fails. (People v. Whalen (2013) 56 Cal. 4th 1, 85;
People v. Chubbuck (2019) 43 Cal. App. 5th 1, 12 [“Where an
appellant fails to supply a record adequate for review, his claim
must fail”].)
18
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
19