Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05530
RAYE, Acting P. J.Over the course of a year, from June of 2005 to June of 2006, defendant Robert Lee Carroll-Jafari burglarized four cellular phone stores in Sacramento and robbed two store employees at gunpoint. He was convicted by jury of two counts of robbery (Pen. Code, § 211), four counts of commercial burglary (§ 459), one count of conspiracy to commit burglary (§ 182, subd. (a)(1)), and one count of carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)); the jury also found that defendant personally used a firearm during the commission of the robberies (§ 12022.53, subd. (b)). Following a bifurcated hearing, the trial court found that defendant was released from custody on bail when he committed three of the charged offenses. (§ 12022.1, subd. (b).) The trial court sentenced defendant to an aggregate term of 19 years in state prison and imposed other orders.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends his motion to suppress evidence should have been granted because police lacked probable cause to arrest him at the time his vehicle was searched incident to that arrest, and his attorney rendered ineffective assistance at sentencing by failing to (1) object to an alleged error in the probation report, (2) request concurrent sentencing, and (3) request that the court strike two section 12022.1, subdivision (b) enhancements pursuant to section 1385. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts underlying each of defendant’s crimes is unnecessary to the resolution of this appeal. However, because defendant asserts that the denial of his motion to suppress requires reversal as to four counts (counts one through three, involving the burglary of Elk Grove Wireless and robbery of Ahmad Dawud and Hemdan El Beshity, and count seven, involving the carrying of a loaded firearm), we will recite in some detail the facts relating to those counts.
On the afternoon of June 11, 2005, Dawud and El Beshity were working at Elk Grove Wireless when defendant and another man entered the store. Defendant, the shorter of the two men, was wearing a gray hooded sweatshirt with the hood pulled over his head. Dawud asked if they needed help. Defendant responded, “[Y]’all got that new Metro phone?” Defendant then jumped onto a stool that was positioned in front of a display case, pulled a handgun from his sweatshirt pocket, stepped onto the counter and jumped down the other side, and ordered Dawud and El Beshity to “Get down on the floor.” A shove from defendant accelerated Dawud’s descent to the floor. Defendant then turned the gun on El Beshity, grabbed his shirt, and pulled him to the floor. The second man, holding a “silver, shiny object” that Dawud believed to be a gun, also ordered El Beshity to get on the floor.
Defendant then asked El Beshity, “Where’s the money?... Where’s the phones?” El Beshity pointed to the cash tray behind the counter containing roughly $350 to $400 and told defendant that the phones were in the back room. One of the robbers took the money from the cash tray. Defendant then went into the back room, emerging a short time later carrying several boxes of cell phones. Before the robbers departed the store, the second man ordered Dawud and El Beshity to stay down on the floor. El Beshity called police a short time later.
Roughly an hour after the robbery, Dawud and El Beshity locked up the store and went to visit Dawud’s brother, Mohammad Dawud, at the Metro PCS store at the Florin Mall. About 30 minutes later, defendant and the second robber, accompanied by a third man, walked into the Metro PCS store. Dawud stared at defendant in frightened disbelief; defendant made eye contact with Dawud, and the men quickly left the store. Dawud then told El Beshity, who was engaged in a conversation and did not see the men enter, that the robbers had just been in the store. Dawud, El Beshity, and Mohammad went to the mall’s security center and Mohammad told a security guard that Dawud had been robbed earlier and had just seen the robbers in the mall. Two sheriff’s deputies, who were also at the security center, then led the men through the mall in an unsuccessful attempt to find the robbers.
Because the Dawud brothers share the same surname, to avoid confusion we will refer to Mohammad Dawud by his first name.
Dawud’s cousin, Khaled Rashed, worked at the Nextel store at the Florin Mall. Mohammad gave Rashed a description of the three men who were in the Metro PCS store and asked if he had seen anyone matching the description. Rashed informed Mohammad that the men he was looking for had just been in the Nextel store seeking to sell some cell phones. Rashed e-mailed some photos that had been taken with the Nextel store’s surveillance cameras to Mohammad, who forwarded them to Dawud three days later. Dawud identified defendant as one of the men in the photos, and as the man he had seen in the Metro PCS store. The surveillance photos were then forwarded to Detective Mike French of the Sacramento County Sheriff’s Department.
Six days after the robbery, defendant and another man returned to the Nextel store to try to activate several cell phones. Rashed informed Mohammad over the phone, and Mohammad told Rashed to stall the men until Detective French could be summoned. Suspicious of the delay, defendant said: “Something is not right, we gotta go.” Mohammad called Detective French as defendant and the other man made their way to the front entrance of the Florin Mall. They were detained by Detective French and Deputy Robert White at the mall entrance. The other man was identified as Dante Corbray. Detective French contacted Mohammad, who called Dawud and El Beshity to come down to attempt to identify the suspects. Both Dawud and El Beshity identified defendant as the shorter of the two men who had robbed them at the Elk Grove Wireless store. Dawud also identified Corbray as the taller of the two robbers. A subsequent search of Corbray’s home revealed several boxes of cell phones.
On August 10, 2005, Detective Jeffrey Beezley of the Sacramento Police Department was directed to pull over a vehicle being driven by defendant. Defendant was detained, and he and his vehicle were searched. Two cell phones were found on defendant. A search of the trunk of the vehicle revealed a loaded.38-caliber revolver in plain sight in an empty speaker box. The details of this detention and search will be set forth more fully in connection with defendant’s contention that his motion to suppress should have been granted.
As already indicated, defendant was convicted by jury of the burglary of Elk Grove Wireless (count three), the armed robbery of Ahmad Dawud and Hemdan El Beshity (counts one & two), carrying a loaded firearm in a public place (count seven), the burglaries of three other cell phone stores (counts four, five & eight), and conspiracy to commit burglary (count six). Following a bifurcated hearing, the trial court found that defendant was released from custody on bail when he committed three of the charged offenses. Defendant was sentenced to state prison for an aggregate term of 19 years.
DISCUSSION
I
Defendant contends his motion to suppress evidence of the loaded.38-caliber revolver found in the trunk of his car should have been granted because police lacked probable cause to arrest him at the time his vehicle was searched incident to that arrest. We disagree.
Facts Adduced at the Suppression Hearing
On September 13, 2005, defendant’s motion to suppress evidence was heard in conjunction with the preliminary hearing.
Detective Michael McKenna of the Sacramento Police Department testified that he interviewed a man by the name of Shawn Blackwell on August 10, 2005, while Blackwell was in custody on several burglary charges, concerning a home invasion robbery that had occurred two days before. After being given his Miranda warnings, Blackwell informed Detective McKenna that he and three others had perpetrated the robbery, implicating his cousin Will Blackwell, defendant, and Dante Corbray. Describing the robbery, Blackwell stated his vehicle was used as the mode of transportation, and he and defendant were seated in the back seat. When they pulled up to the residence, defendant and the other two participants “hooded up, and went to commit a lick,” while Blackwell stayed behind. According to Blackwell, when the three returned to the vehicle a short time later, Corbray was holding a handgun Blackwell recognized as belonging to defendant. Blackwell did not know defendant by name, referring to him as “Diddy” throughout the interview, but identified defendant through a mug shot as the person seated next to him in the vehicle. The interview lasted roughly six hours, with several restroom and snack breaks. At the end of the interview, Blackwell led Detective McKenna to defendant’s home.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
Sacramento Police Lieutenant Milton Nenneman testified that he conducted a briefing on August 10, 2005, regarding the home invasion robbery. Lieutenant Nenneman told the officers at the briefing that three individuals, including defendant, were arrestable for the robbery and were potentially armed. The officers were directed to surveil the residences of these suspects in an attempt to make contact.
Detective Beezley testified that he attended the briefing involving the home invasion robbery and surveilled defendant’s home from about 5:30 p.m. until shortly after 8:00 p.m. At approximately 8:20 p.m., Detective Beezley received a dispatch advising that Detective Mouzis had seen an individual matching defendant’s description getting into a Lincoln parked in front of the residence. As Detective Beezley received the dispatch, he witnessed defendant drive the Lincoln past his vehicle and followed in pursuit. Detective Beezley then radioed his location to the SWAT team, who moved into position in front of Beezley’s vehicle and stopped the Lincoln.
Defendant was immediately taken into custody by the SWAT team. A search of defendant revealed two cell phones. A search of the trunk of the Lincoln revealed a loaded.38-caliber revolver in plain view in an empty speaker box. Detective Beezley did not have a warrant to arrest defendant or to search his person or vehicle. As Detective Beezley articulated his reason for the stop: “We were told that this involved a home invasion robbery where one of the victims was shot, that he was also supposed to be armed with a handgun.” Once defendant was in custody, Detective Beezley’s immediate supervisor placed a call to Detective Toel, the case agent on the home invasion investigation, who directed that the vehicle be searched.
The trial court denied defendant’s motion to suppress evidence of the handgun, finding that the officers possessed probable cause to arrest defendant and that the search of the vehicle was made incident to that lawful arrest.
Analysis
We begin by noting that the search of defendant and his vehicle was incident to defendant’s arrest, and was therefore “not ‘unreasonable’ within the meaning of [the] Fourth Amendment if that arrest was lawful. [Citation.]” (People v. Lara (1967) 67 Cal.2d 365, 373 (Lara).) “In turn, the arrest was lawful if its [sic] was predicated on reasonable cause to believe Lara had committed a felony. [Citation.] ‘The question of probable cause to justify an arrest without a warrant must be tested by the facts which the record shows were known to the officers at the time the arrest was made.’ [Citation.]” (Id. at pp. 373-374.)
It is well settled under California law that an officer may make an arrest “based on information and probable cause furnished by other officers.” (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553, citing Remers v. Superior Court (1970) 2 Cal.3d 659, 666; People v. Madden (1970) 2 Cal.3d 1017, 1021; Lara, supra, 67 Cal.2d at p. 374; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; People v. Poehner (1971) 16 Cal.App.3d 481, 486-487; People v. Adkins (1969) 273 Cal.App.2d 196, 198.) “These cases, however, require that when the first officer passes off information through ‘official channels’ that leads to arrest, the officer must also show basis for his probable cause. In other words, the so-called ‘Harvey-Madden’ rule requires the basis for the first officer’s probable cause must be ‘something other than the imagination of an officer who does not become a witness.’ [Citation.]” (Ramirez, supra, 59 Cal.App.4th at p. 1553.)
In this case, Detective Beezley and the SWAT team acted on information received from Lieutenant Nenneman during the briefing, which was provided by Detective McKenna following his interview with Shawn Blackwell. Detective Beezley and the SWAT team were entitled to make an arrest on the basis of this information as it was received through official channels. (Lara, supra, 67 Cal.2d at p. 374.) However, because the officers did not obtain an arrest warrant, the People were also required to demonstrate that the officer who initiated the arrest, Detective McKenna, had reasonable cause himself to believe defendant had committed a felony. (Ibid.)
In this regard, Detective McKenna testified that he interviewed Blackwell, in custody on several burglary charges, concerning a home invasion robbery. After being Mirandized, Blackwell informed Detective McKenna that he and three others, including defendant, had committed the robbery. Blackwell’s vehicle was used for transportation; he and defendant were seated in the back seat. When they pulled up to the residence, defendant and the other two participants “hooded up, and went to commit a lick,” while Blackwell stayed behind. When the three returned to the vehicle a short time later, one of the robbers was holding a handgun Blackwell recognized as belonging to defendant. Blackwell identified defendant through a mug shot as the person seated next to him in the vehicle. Blackwell then led Detective McKenna to defendant’s home.
There can be no doubt that this information would have constituted probable cause to arrest defendant had it been provided by a tested informant. (Lara, supra, 67 Cal.2d at p. 374.) While there is no indication in the record that Blackwell had provided reliable information on previous occasions, “information given by an untested informant or arrestee is nevertheless sufficient if it is ‘corroborated, in essential respects, by other facts, sources or circumstances.’ [Citation.] Such corroboration need not itself amount to reasonable cause to arrest; its only purpose is to provide the element of ‘reliability’ missing when the police have had no prior experience with the informant. Accordingly, it is enough if it gives the officers reasonable grounds to believe the informant is telling the truth, for in this type of case the issue is ‘not whether the information obtained by the officers emanated from a reliable source, but whether the officers could reasonably rely upon that information under the circumstances.’ [Citation.]” (Id. at pp. 374-375.)
Here, Blackwell was in custody on several burglary charges and implicated himself, defendant, and two others in a home-invasion robbery, a crime far more serious than the burglaries of which he was already accused. Accordingly, Blackwell’s statement to Detective McKenna seriously jeopardized his own penal interest. “‘Such statements contain “an internal guaranty of reliability” and are “of a peculiarly trustworthy nature.”’” (People v. Enriquez (1982) 132 Cal.App.3d 784, 792, quoting Skelton v. Superior Court (1969) 1 Cal.3d 144, 154, fn. 7 & citing People v. Hall (1974) 42 Cal.App.3d 817, 823.) Moreover, the statement was a detailed account of events in which Blackwell himself participated. We conclude that the detailed and inculpatory nature of Blackwell’s first-hand statement rendered it inherently reliable. Therefore, Detective McKenna possessed “reasonable grounds to believe that [Blackwell was] telling the truth.” (Enriquez, supra, 132 Cal.App.3d at p. 792.)
Moreover, the fact that defendant appeared later that night at the location pointed out by Blackwell further corroborated the reliability of Blackwell’s information. While defendant correctly points out that corroboration of innocent aspects of an untested informant’s tip does not, by itself, render reliable an otherwise unreliable tip (People v. Gallegos (1964) 62 Cal.2d 176, 179; People v. Fein (1971) 4 Cal.3d 747, 752-753, disapproved on other grounds in People v. Palaschak (1995) 9 Cal.4th 1236, 1242), we find that in this case, such corroboration adds to the reliability already inherent in Blackwell’s statement implicating himself in the robbery.
We therefore conclude the trial court did not err in finding that the officers possessed probable cause to arrest defendant, and that the search of the vehicle was made incident to that lawful arrest.
II
Defendant also contends his attorney rendered ineffective assistance at sentencing by failing to (1) object to an error in the probation report, (2) request concurrent sentencing, and (3) request that the court strike two section 12022.1, subdivision (b) enhancements pursuant to section 1385. We disagree.
In making a claim of ineffective assistance of counsel, the burden is on defendant to establish both that counsel’s representation fell below prevailing professional norms and that, in the absence of counsel’s failings, a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) On review, we are required to exercise deferential scrutiny, i.e., we may not second-guess counsel’s reasonable tactical decisions. (Ledesma, supra, 43 Cal.3d at p. 216.) We examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is affirmed “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation[.]” (People v. Pope (1979) 23 Cal.3d 412, 426.)
In this case, the trial court sentenced defendant to an aggregate term of 19 years in state prison, calculated as follows: a 13-year term was imposed on count one, the principal term (the middle term of three years, plus a consecutive term of 10 years for the firearm enhancement); on count two, the middle term of three years, plus a consecutive term of 10 years for the firearm enhancement, was imposed, to run concurrently with the sentence on count one; three consecutive eight-month terms (one-third the middle term of two years) were imposed on counts four, five, and eight; and two consecutive two-year terms were imposed for the out-on-bail enhancements attached to counts five and eight.
Sentence on count three (the middle term of two years) and count six (the middle term of two years, plus two years for the out-on-bail enhancement) was imposed and then stayed pursuant to section 654. The court did not impose sentence on count seven.
First, defendant complains that his attorney did not object to the following statements in the probation report: “Consecutive sentencing as to Counts (4 and 5) and 8 are mandated pursuant to Penal Code Section 12022.1(e). Consecutive sentencing as to these counts is also recommended pursuant to [California Rules of Court, rule] 4.425(a)(3). [¶] Regarding the 12022.1 P.C. enhancements, it is recommended the defendant serve an additional two years per enhancement.” The tactical reason for failing to object to these statements is obvious: the error is remarkably minor, and objection was not likely to benefit defendant. Section 12022.1, subdivision (e) provides: “If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence.” (Italics added.) For purposes of section 12022.1, “primary offense” means “a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked.” (§ 12022.1, subd. (a)(1).) The provision defines “secondary offense” to mean “a felony offense alleged to have been committed while the person is released from custody for a primary offense.” (§ 12022.1, subd. (a)(2).)
Here, while the trial court found that defendant was released from custody for a felony primary offense when he committed three felony secondary offenses, these secondary offenses were not counts four, five, and eight, but rather counts five, six, and eight. Accordingly, the trial court was not required to impose a consecutive sentence on count four. However, because the trial court stated its reasons for imposing a consecutive term as to counts four, five, and eight, i.e., that the “crimes were independent” and “occurred at different times and different places” so as “not to indicate a single period of aberrant behavior,” it does not appear that the trial court was under the erroneous impression that it was required by section 12022.1, subdivision (e) to impose a consecutive term on count four. This conclusion is confirmed by the fact that the trial court was well aware that counts five, six, and eight (and not count four) were the counts with section 12022.1, subdivision (b) enhancements attached. We find a plausible tactical reason for failing to bring to the court’s attention the minor mistake in the probation report, and further find no reasonable probability that defendant’s sentence would have been more favorable had the error been pointed out.
Second, defendant complains that his attorney did not request concurrent sentencing. As already explained, section 12022.1, subdivision (e) mandated the consecutive terms the court imposed on counts five and eight. Counsel is not required to ask for something that cannot legally be granted. And while counsel could have requested a concurrent sentence on count four, he could have rationally concluded, as did the trial court, that the crimes were independent of each other, occurring at different times and different locations, and that it would be futile to attempt to convince the court that they indicated a single period of aberrant behavior. Counsel was not asked to illuminate his decision not to request a concurrent sentence on count four, and we will not second-guess his decision where a satisfactory explanation can be surmised.
Finally, defendant complains that his attorney did not request that the trial court strike, pursuant to section 1385, the two section 12022.1, subdivision (b) enhancements that were imposed and executed. While defendant is correct that sentence enhancements under section 12022.1, subdivision (b) are “subject to a trial court’s discretion to strike pursuant to section 1385” (People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156), the fact that a court possesses discretion to do an act does not mean that counsel is ineffective for declining to ask the court to exercise its discretion. Again, counsel was not asked to provide an explanation for his inaction. Nor does the record reveal that trial counsel had facts in his possession that should have indicated a motion to strike would have been successful. On this record, we cannot find that counsel was ineffective for failing to bring a motion to strike, nor can we find a reasonable probability that such a motion would have been granted.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ , J., CANTIL-SAKAUYE , J.