Opinion
A150347
03-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMIL ALHALEMI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 226635)
Defendant appeals from the denial of his motion to suppress evidence following his guilty plea to robbery. (Pen. Code, §§ 1538.5, subd. (m); 211.) Defendant argues his suppression motion should have been granted because the prosecution violated the Harvey-Madden rule. (People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970) 2 Cal.3d 1017 (Madden).) We affirm.
Unless otherwise indicated, all statutory references are to the Penal Code.
STATEMENT OF THE CASE
The San Francisco District Attorney charged defendant by complaint with the commission of three second degree robberies on August 14, 2016, alleged to be serious and violent felonies (§§ 211; 667.5, subd. (c); 1192.7, subd. (c).) The complaint further alleged that on April 13, 2016, defendant committed attempted robbery, also a serious and violent felony, and felony assault by means of force likely to cause great bodily injury. (§§ 664/211; 245, subd. (a)(4).)
On October 17, 2016, defendant filed a written motion to suppress evidence seized on August 14, 2016. (§ 1538.5.) Citing the Harvey-Madden rule and its progeny, defendant argued the search and seizure were warrantless, and "[i]t is the prosecution's burden to show that information received by an officer through official channels had a legitimate source; therefore, when challenged by the defense, the prosecution must produce either the original informant as the source of the information relied upon or the officer who received it from the informant." The motion was heard concurrently with the preliminary hearing and denied by the magistrate on October 27, 2016. Defendant was held to answer on two of the three August 14, 2016 robberies. The third charged robbery was dismissed. Defendant was also held answer on the April 13, 2016 attempted robbery and assault.
An information was filed on November 8, 2016. On December 5, 2016, defendant filed a motion to set aside the information (§ 995) on various grounds, including that the lawfulness of the detention must be proved by competent evidence, not inadmissible hearsay. As "the detaining officer did not testify, and Alhalemi objected to hearsay statements heard through dispatch[,] . . . [t]he detention, cold show, and recovery of stolen items were the tainted fruits of the poisonous tree."
On December 23, 2016, the trial court denied defendant's section 995 motion. The court then granted the prosecution's motion to file a first amended information charging defendant with one count of second degree robbery, a serious and violent felony, and dismissing all the remaining counts. (§§ 211, 667.5, subd. (c), 1192.7, subd. (c).) Pursuant to a negotiated disposition, defendant pleaded guilty to the first amended information. On January 12, 2017, the trial court placed defendant on probation for three years on various terms and conditions, including 152 days in jail with 152 days' credit for time served.
STATEMENT OF FACTS
Our factual summary is drawn from the transcript of the combined preliminary hearing and motion to suppress. We do not summarize the facts adduced on the April 13, 2016 charges as they are not relevant to the rulings denying the motions to suppress evidence and dismiss the information.
Jose Perez testified that on August 14, 2016, at approximately 12:20 a.m., he and coworkers Cesar Lara and Katherine Ballesta were walking to the bus stop at Fifth and Mission Streets in San Francisco when they were approached by a man he identified in court as defendant and an "African-American . . . wearing a black sweatshirt and red pants." Defendant pushed Lara against a wall, searched his pockets, and removed a cell phone from Lara's pocket; the cell phone went flying. Defendant retrieved the cell phone, then approached Perez and started searching his back pocket. Perez was frightened because the African-American said, "He has a gun, he's going to shoot you, give him your stuff." Defendant removed Perez's wallet, which held his Clipper card, debit card, and counselor I.D. card. The robbers then ran away towards Jessie Street. Perez stayed put.
Ten or 15 minutes later, Perez was taken to a location to view people the police said they thought were the ones responsible. Perez identified defendant as the man who had just robbed him. He recognized defendant by his face, his baggy pants, and his gray sweatshirt. Perez got his counselor I.D. card back that night, but not his wallet or debit card.
San Francisco Police Officer Ryan Gonzalez testified that on August 14, 2016, at approximately 12:20 a.m., he and his partner were on patrol when they received a "call for service" at Fifth and Mission Streets "regarding a robbery involving a person with a gun." While the officers were en route to the location, they received information that one of the suspects was "possibly a Latin male, 17 to 18 years old, had a couple of different descriptions about what he was wearing on his upper body, as far as sweatshirt, possibly gray with a black hoodie, and he was a person possibly with a gun." The other suspect was "a black male juvenile possibly wearing all gray." Arriving at Fifth and Mission, the officers met three people, two men and a woman, who said they were victims of the robbery. The victims gave the officers "some other information that was still pretty similar to what was given to us by dispatch." The officers put the victims in the back of the patrol car and drove around looking for the suspects, but did not find them.
Officer Gonzalez's testimony about the description he heard broadcast was informed by the computer aided dispatch (CAD), a one-page document entitled, "Event History Detail," with which he refreshed his recollection. The CAD was not introduced into evidence. --------
At this point, Gonzalez spoke to the female victim, Ballesta. She said the Latin suspect grabbed the cell phone from her boyfriend. She told him, "[H]ey, that's my phone." Defendant responded, "I don't care bitch, check her." Ballesta believed defendant was telling his confederate to search her. She did not say whether the other individual did search her.
While Gonzales was speaking with Ballesta, he received information through his PIC radio that officers had possibly located the suspects. Gonzales and his partner left the victims and drove to the officers' location to make sure there was sufficient help on the scene. The detention occurred while he and his partner were en route. When they arrived at Eddy Street, they saw that defendant had been detained at the corner of Eddy and Jones Streets, while other subjects had run to a parking lot nearby. There were two or three officers with defendant, who appeared to be a fair-skinned Latin male wearing a gray and black top.
Officer Gonzalez later conducted a "cold show" of defendant in handcuffs, in which Perez and Ballesta positively identified defendant as the light-skinned Latin robber. Gonzales also conducted a cold show with the third victim, who did not speak English. Gonzales sat in the police car with Lara and the police interpreter. Lara was scared and uncooperative, and did not identify defendant.
Defendant was arrested, searched, and found in possession of Perez's debit card.
At the conclusion of the evidence, defense counsel argued that the People had not presented any evidence "justifying the detention" since there was no information regarding where or why defendant was detained, or what he was wearing when he was detained, since she had objected on "Harvey-Madden" grounds to the "vague description on dispatch" to which the officer had testified. Defense counsel argued defendant's handcuffing was a de facto arrest without probable cause because "we don't know any of the circumstance of the detention or the search."
The magistrate took judicial notice of the fact that Fifth and Mission was "more than a few blocks, but not a great distance" from Eddy and Jones. The magistrate observed that defendant appeared to be a "Latin male" with the "look, skin tone, hair color that could be construed as a Latin look. He also looks very young to me. He could be 17 or 18 years old, and that was the description. [¶] The description also provided was [of] a person with a gray sweatshirt and a black hoodie, and the testimony that I have at this hearing was that your client, at Eddy and Jones, not a long distance from 5th and Mission, was wearing a black and gray top. [¶] So on the argument you're offering, that there's no good reason to stop your client, I'm not persuaded at this point, so I want to give you a final opportunity to tell me why." Counsel responded, "[W]e don't know because we didn't hear from the officer who actually saw and stopped Mr. Alhalemi [¶] . . . [¶] if maybe he was wearing something different and the officers had located the sweater and put it on him." The magistrate denied the motion.
At the hearing on the section 995 motion to dismiss, defense counsel reiterated that the detention could not be justified on the basis of the nondetaining officer's testimony, because "we don't know" what the detaining officer heard or saw, or what description he received, because he did not testify. The trial court commended defense counsel for her work on the suppression issue and denied the motion to dismiss.
DISCUSSION
On appeal, defendant renews the arguments he made below, namely, that the evidence connecting him to the robbery of Perez must be suppressed because, under the Harvey-Madden rule, Officer Gonzalez's testimony was insufficient to establish that the officer who actually detained him had the same information. The short answer is: true, but in combination with the testimony of the actual victim, and the reasonable inferences therefrom, the evidence adduced was more than sufficient to satisfy the Harvey-Madden rule.
Before we proceed to the long answer, we set forth the applicable standard of review. " 'A criminal defendant may test the unreasonableness of a search or seizure by making a motion to suppress at the preliminary hearing and, if unsuccessful, renewing the motion in superior court if held to answer. (§ 1538.5, subd. (i).) Or, if unsuccessful at the preliminary hearing, he or she may raise the matter in superior court under the standards governing a section 995 motion. (§ 1538.5, subd. (m).) [¶] . . . "In a 995 proceeding, the court merely reviews the evidence. It does not substitute its judgment as to the weight thereof or the credibility of the witnesses who testified at the hearing nor does it resolve conflicting factual contentions. [Citations.] The function is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a judgment and involves the determination of a legal issue only." [Citation.]' (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.) [¶] '[O]n appeal concerning a section 995 review of a motion-to-suppress denial, it is the determination of the magistrate at the preliminary hearing that is reviewed. [Citations.]' (Cooper, supra, 114 Cal.App.4th at p. 717.) In so doing, the appellate court applies the same standard as the trial court under the section 995 motion—it does not substitute its judgment as to the weight of the evidence or the credibility of the witnesses, nor does it resolve conflicting factual contentions." (Brewer v. Superior Court (2017) 16 Cal.App.5th 1019, 1023.)
The Harvey-Madden rule takes its name from two marijuana possession cases. The rule for which Harvey, supra, 156 Cal.App.2d 516, is remembered comes from the concurring opinion of Justices Dooling and Draper. Two Pittsburg police officers, Aiello and Russo, were ordered by their superior, Schillace, to stake out the defendant's residence and arrest him " '[i]f they believed that "something was wrong." ' " (Id. at p. 519.) An unidentified informant had previously told Aiello that the defendant was dealing in narcotics. (Id. at p. 522.) On the night of the arrest, Schillace informed Aiello that he had sent this same informant out to purchase narcotics from the defendant. Schillace also told Aiello that a buy would be made that night at 9:00 p.m., the buyer would appear in a blue coupe, and if defendant talked to the person in the blue coupe and then went to his residence, Aiello could assume that a drug transaction was in progress, because the defendant's mode of operation was to " 'meet the party in the vicinity of his residence, chat with him a while, disappear, re-appear, and the sale would be made. . . .' " (Id. at pp. 522-523.) When events unfolded more or less as Schillace had predicted, Aiello and Russo, who were hiding behind a tree, arrested the defendant. (Id. at p. 520.)
The two concurring justices opined that if Aiello had received this information directly from a reliable informer, or if Schillace, who was dead at the time of trial, had testified that he transmitted to Aiello what the informant had told him, the arrest would have been justified. "It seems clear to us that if a superior police officer has reliable information which would justify him in making an arrest himself, he can delegate the making of the arrest to a subordinate, and justify the arrest by the subordinate by his (the superior's) knowledge. To permit the subordinate to justify the arrest on the superior's unsworn statement to the subordinate that the superior has obtained information from another justifying the arrest, however, would permit police officers to justify arrests by hearsay on hearsay, without requiring the sworn testimony of anybody that the information upon which the arrest was made was actually given to any police officer. To allow this would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly received by him from an informer to another officer who had not received such information from the informer, without establishing under oath that the information had in fact been given to any officer by the informer, or indeed that there was an informer at all. The possibilities of the phantom informer, if this were to be permitted, are too obvious to need elaboration." (Harvey, supra, 156 Cal.App.2d at pp. 523-524.) The court also observed that if the informer had been produced and testified that he had in fact given Schillace the information Schillace transmitted to Aiello, and the trial court credited the informant's testimony, the trial court would have been justified in finding reasonable grounds for arrest. (Id. at p. 524.) This was not an option in Harvey because the prosecution refused to disclose the informant's identity. (Ibid.)
In Madden, supra, 2 Cal.3d 1017, the defendant was arrested by Officer Walker for marijuana possession on the basis of information Walker testified he had received from two officers and a confidential reliable informant. The information was that the defendant lived at a certain address and was peddling narcotics from this residence. (Id. at p. 1019.) Walker "did not testify as to any circumstances which caused the officers to come to that conclusion." (Id. at p. 1021.) With respect to the informant, Walker testified he " 'told me just as I have told you, that Narvell Madden lived at this address, and that he was selling pills and marijuana from the address. That's all he told me.' (Italics added.) The statement by the informant did not purport to be based on the informant's personal observations, did not indicate how the informant obtained his information, and did not provide any details upon which the trial court could have assumed that the informant obtained his information in a reliable way." (Id. at p. 1024.)
The Madden court held Officer Walker's testimony was insufficient to establish probable cause to arrest. (Madden, supra, 2 Cal.3d at pp. 1020-1021.) The court held: " 'It is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, "when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness." [Citations.] To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. [Citation.] "If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; 'reasonable cause' or 'reasonable grounds,' . . . could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence." ' " (Madden, at p. 1021.)
The Harvey-Madden rule remains alive and well. In People v. Brown (2015) 61 Cal.4th 968 (Brown), at issue was "whether the detention was supported by reasonable suspicion. The circumstances here include a reliable citizen's report of a violent fight potentially involving a firearm, the deputy's very quick response time, and Brown's presence near the scene of the fight in the otherwise vacant alley. These facts justified this brief detention." (Id. at pp. 980-981.) The caller's reliability was supported by his personal knowledge, the contemporaneity of his report, his use of the 911 emergency system, and the fact that he was a private citizen reporting a crime. (Id. at pp. 981-982.)
The Brown court rejected the defendant's Harvey-Madden claim that the caller's reliability must be based on facts known to the detaining officer, and not the 911 dispatcher, and that the detaining officer was unaware of the circumstances under which the call was placed. (Brown, supra, 61 Cal.4th at pp. 982-983.) Citing Harvey and Madden, among other cases, the Brown court reasoned that "[a]n officer may arrest or detain a suspect 'based on information received through "official channels." ' [Citations.] If a 911 call 'has sufficient indicia of reliability . . . a dispatcher may alert other officers by radio, who may then rely on the report, [citation], even though they cannot vouch for it.' [Citations.] However, upon proper objection [citation] ' " 'the People must prove that the source of the information is something other than the imagination of the officer who does not become a witness.' " ' [Citations.] This requirement can be met by calling the police dispatcher as a witness at the suppression hearing or by introducing a recording of the 911 call. [Citations.] Here, the dispatcher was present at the hearing but was not called because Brown stipulated to admission of the 911 recording into evidence. That recording provided ample basis to review the caller's reliability. [Citations.] [¶] . . . [T]his 911 caller demonstrated adequate indicia of reliability to credit his account of a violent fight in progress involving several people and possibly a loaded gun in the alley behind the caller's residence." (Id. at p. 983, fn. omitted.)
From the foregoing authorities, it is apparent to us that the Harvey-Madden rule was satisfied here by the testimony of Perez, the person who was robbed and gave a description of the robbery and the robbers to the police. It seems to us he stands in the shoes of the informants in Harvey and Madden, and the citizen reporter in Brown. To be sure, some of the dots in this case must be connected by reasonable and logical inferences. For example, no one asked Perez if he or one of other victims called 911, but the magistrate could reasonably infer one of the victims must have done so because Officer Gonzalez was dispatched to Fifth and Mission Streets to investigate a robbery involving a gun. Officer Gonzalez's testimony about his reliance upon the information in the dispatch for his subsequent actions, if it was hearsay, was admissible under Evidence Code section 1250, the state-of-mind exception to the hearsay rule. (People v. Romeo (2015) 240 Cal.App.4th 931, 946-947.)
Similarly, the magistrate could safely infer that if Officer Gonzalez heard the dispatch about the robbery and the description of the robbers, which must have been based on the call for help from one of the victims, other officers in the area, including the ones who actually detained defendant pending the arrival of the victims for a cold show, also heard the dispatch and the broadcast description. Finally, from Perez's testimony, corroborated by Gonzalez, that no more than 10 or 15 minutes after the robbery Perez and the two other victims were transported to a location not very far away, where Perez recognized and positively identified defendant as the robber by his face, his baggy pants, and his gray sweatshirt, the magistrate could reasonably reject the possibility that the detaining police officer or officers found defendant "wearing something different and the officers had located the sweater and put it on him." Defendant's Harvey-Madden motion to suppress was properly denied.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.