People v. McHenry CA2/6

Filed 6/24/15 P. v. McHenry CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B253038 (Super. Ct. No. TA126841) Plaintiff and Respondent, (Los Angeles County)

v.

JOHN WINFIELD McHENRY,

Defendant and Appellant.

A jury found John Winfield McHenry guilty of two counts of possession of an assault weapon (Pen. Code, § 30605, subd. (a)) and one count of misdemeanor child endangerment (id. § 273a, subd. (b)). On appeal, he contends the trial court erred in denying his motions to traverse and quash a search warrant. We affirm. FACTS On January 30, 2013, police searched McHenry's home pursuant to a warrant. In an unlocked safe in the closet of McHenry's bedroom, officers recovered several firearms, including a nine-millimeter Uzi, a .38 caliber revolver and an SKS rifle. Officers also recovered a loaded handgun from between the mattresses. Downstairs, officers recovered two loaded handguns on top of a china cabinet and entertainment system. There were two young children in the home.

Motion to Traverse and Suppress Prior to trial, McHenry moved to traverse the warrant and to suppress evidence. At the People's request, the court ordered a portion of the warrant affidavit sealed to protect the identity of a confidential informant. In the unsealed portion of the warrant affidavit a Los Angeles County Sheriff's detective (affiant) states: He has training and experience and has qualified as an expert on criminal street gangs. He is investigating three crimes―a shooting, an assault with a deadly weapon and a burglary―all involving the East Side Paramount gang. "It is very common for gang members to trade or pass firearms, or other dangerous weapons, amongst each other so they may be used by all members of their gang (East Side Paramount). Your Affiant also knows it is common for fellow gang members to stay at, or spend the night at, the residence of other gang members of the same gang." Affiant states: John "Lucky" McHenry was detained by a deputy for a Vehicle Code violation. The deputy completed a field interview card. McHenry admitted associating with the East Side Paramount gang. Affiant believes illegal firearms will be found in McHenry's residence. Pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), the trial court reviewed the sealed portion of the warrant affidavit and examined the affiant in camera, outside McHenry's presence. The court found that the sealed portion of the affidavit was properly sealed and would remain sealed. The court also found the affidavit shows probable cause for the search. McHenry's counsel told the court that because he did not know the contents of the affidavit, he could not proceed with a motion to traverse the warrant. DISCUSSION McHenry contends the warrant affidavit lacked probable cause to search his home. McHenry's contention is based solely on the unsealed portions of the affidavit in support of the warrant. But the trial court based its decision to deny