Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF120651A Michael G. Bush and Gary T. Friedman, Judges.
Judge Bush presided over appellant’s motion to quash the search warrant. Judge Friedman presided over appellant’s change of plea and sentencing hearings.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
STATEMENT OF THE CASE
On January 9, 2008, appellant, Mark Christopher Chatman, was charged in an information with first degree murder (Pen. Code, § 187, subd. (a), count one) with codefendant Jimmy Blake Broussard. A special circumstance was alleged during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). The information further alleged that the defendants committed robbery (§ 212.5, subd. (c), count two).
Unless otherwise designated, all statutory references are to the Penal Code.
On February 10, 2009, Chatman filed a motion to quash the search warrant and to suppress evidence. At the conclusion of the February 26, 2009, suppression hearing, the trial court denied the motion. Three days after the commencement of a jury trial, the parties entered into a negotiated plea wherein Chatman waived his constitutional rights pursuant to Boykin/Tahl and pled no contest to a single count of second degree murder. The remaining allegations were dismissed. On October 6, 2009, Chatman was sentenced to prison for 15 years to life. He did not obtain a certificate of probable cause.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On appeal, Chatman contends the trial court erred in denying his motion to quash. Chatman further contends the trial court abused its sentencing discretion in denying his application for probation. We reject both arguments and will affirm the judgment.
FACTS
A. Preliminary Hearing
On September 15, 2007, Manjit Singh told Bakersfield Police Officer Mark Herman that Douglas Childers had been in the store on Chester Street the morning of September 15, 2007, and cashed a check in the amount of $347.50, minus a $5.00 processing fee.
At the change of plea hearing, the parties stipulated the testimony and evidence from the preliminary hearing constituted the factual basis for the defendant’s plea.
Diana Bell told Herman she was driving her car southbound on Chester Street when she looked out her rearview mirror and saw a man hanging out the passenger side of a vehicle traveling at high speed. Bell saw the man fall from the vehicle and land on the road. The car the man was hanging from passed Bell. Just prior to the man falling, Bell clearly saw hands reaching from the vehicle and releasing the man. Herman attended Childers’s autopsy and learned Childers had $20 on his person.
On September 15, 2007, Charles Clayborn received a ride from Chatman and codefendant Broussard during the early morning hours. There was a man (Childers) Clayborn did not know sitting in the back seat who smelled like alcohol. Clayborn could not understand what the man was saying. Chatman was giving Childers a ride to the bus station to get gas money from him. They parked by a store near the bus station.
Childers exited the car and went inside the store. When he came out of the store, Childers went to the passenger side of the car. Broussard was sitting in the passenger seat and Chatman was in the driver’s seat. Childers was counting his money and leaning into the passenger-side car window. Chatman grabbed all of the money. Childers fell to the curb, then jumped onto the car, holding on from the passenger window. Chatman was driving through traffic when Childers fell off the car. Clayborn did not see Broussard do anything.
Clayborn did not see Childers lose his grip, but turned around and saw Childers in the street about to be hit by an oncoming car. Clayborn did not see Chatman or Broussard push Childers off the car with their hands. Chatman eventually stopped. Clayborn called the police and told them he had been sitting in the back seat of an Alero and that a man fell off the car and needed help. Clayborn did not give the dispatcher his name.
Homicide Detective Patrick Hayes contacted Broussard near Broussard’s residence on Andrea Avenue. Broussard agreed to talk to Hayes at the police station as long as Hayes gave him a ride back home. Broussard explained that he and Chatman picked up Clayborn and went to the bus station. Childers walked up to their car and asked for a lighter. Childers looked like he did not believe them when they said they had no lighter, reached into the car, and started to physically attack them. Chatman hit the gas and drove down the street with Childers hanging from the car.
Broussard later changed his story. In this version of the story, Chatman drove to a Fastrip at Pacheco and South Union and contacted Childers. Chatman gestured for Childers to sit in the back seat. Childers entered the car and sat in the back. At one point Broussard said Clayborn was already in the car, at another he said they then picked up Clayborn. Chatman drove to the bus station. Childers went into a store just south of the bus station.
Broussard explained that Childers leaned into the car holding money. Chatman grabbed the money and immediately began to accelerate the car down Chester Avenue. After the incident, Chatman drove to his residence on Andrea Avenue. Chatman told Broussard they should say that Childers tried to carjack them. Broussard told Hayes that Chatman placed the money under a television set in a bedroom located down a hallway. When Hayes searched Chatman’s residence, he found $322 underneath the television set.
B. Search Warrant Affidavit
Detective Herman filed an affidavit requesting a search warrant to search Chatman’s residence stating that on September 15, 2007, at 9:58 a.m., officers from the Bakersfield Police Department responded to the 2000 block of Chester Avenue where a man was bleeding heavily in the roadway. The man suffered major head trauma and was pronounced dead in the Kern Medical Center Emergency Room. Witnesses reported that the victim appeared to be hanging out of the window of a black sedan driving erratically southbound on Chester Avenue. Witnesses saw the man fall from the vehicle onto the asphalt roadway.
With the description of the vehicle along with the license plate number, officers found the vehicle at the 700 block of Andrea Avenue. During the investigation, detectives learned the incident was related to a robbery. Through suspect and witness statements, detectives learned the victim was given a ride by the suspects from Union Avenue and Pacheco Road to the bus terminal at 2129 Chester Avenue. The victim agreed to pay the suspects gas money and went to Min’s Deli to cash a check.
The victim returned to the suspects’ vehicle and reached inside to give the driver some gas money. The suspects grabbed all of the victim’s money and sped away southbound on Chester Avenue with the victim hanging onto the car trying to get his money back. The victim was eventually pushed off the moving vehicle and struck the roadway.
Mark Christopher Chatman owns the suspect vehicle and resides at an address on Andrea Avenue. Chatman and Jimmy Blake Broussard were arrested for criminal conspiracy, murder, and robbery. During questioning of the suspects, Broussard revealed that after the robbery, he and Chatman went to Chatman’s residence on Andrea Avenue where Chatman hid the money he obtained from the victim underneath a television in a bedroom of the residence. Based on this information, Herman believed he had reasonable cause to have a search warrant issued to search Chatman’s residence.
PROBABLE CAUSE FOR SEARCH WARRANT
Chatman contends the trial court erred in denying his motion to quash the search warrant because there were few specific facts and the statement of an accomplice cannot furnish probable cause for the issuance of the warrant. We disagree.
In determining whether probable cause supported the issuance of a search warrant, the reviewing court asks whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. Whether the description in the warrant of the property to be seized is sufficiently definite is a question of law subject to independent review by our court. The issuing magistrate’s task is to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, including the basis of knowledge and veracity of those supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041 (Kraft).) Probable cause is a strong suspicion that the evidence being sought will be in the location to be searched. (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232.)
The determination of the sufficiency of the affidavit for the issuance of the search warrant is approximately the same as that applicable to an arrest without a warrant. We determine whether the facts contained in the affidavit would lead a person of ordinary caution to believe a strong suspicion of guilt of the accused. The magistrate’s determination of probable cause is given differential review. (Kraft, supra, 23 Cal.4th at p. 1041.) The magistrate’s determination will not be overturned unless the supporting affidavit fails as a matter of law to support a finding of probable cause. Doubtful or marginal cases are resolved in favor of upholding the warrant. (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)
Although the affidavit does not mention specific eye witnesses to the incident, the affidavit sets forth the observations of people who are presumably citizen informants. The witnesses saw Childers cash a check, get thrown from a moving car onto the asphalt roadway, and die as a result of his injuries. This information corroborates further information gathered by Detective Herman that the defendants had stolen the victim’s money.
Chatman challenges the reliability of any information given by codefendant Broussard. It is true that information received from sources who are themselves the focus of pending criminal charges is suspect. Thus, in People v. Duarte (2000) 24 Cal.4th 603, 614-618, exculpatory statements by one accomplice trying to implicate another suspect were found not to be admissible under the hearsay exception for declarations against penal interest during trial. Here, however, we face the statements of an accomplice implicating both himself and Chatman in the context of whether there was probable cause for the issuance of a search warrant, not as proof at trial.
The utterances of a suspected accomplice, who exposes himself or herself to prosecution after making declarations against penal interest, can be relied upon without independent corroboration, to establish probable cause to conduct a search of another person. The statements are trustworthy because they contain an internal guarantee of reliability. (Ming v. Superior Court (1970) 13 Cal.App.3d 206, 214 (Ming); see also U.S. v. Tarazon (9th Cir. 1993) 989 F.2d 1045, 1049 [admissions of crimes carry their own indicia of credibility sufficient at least to support a finding of probable cause to search].) As noted above, Broussard’s statements were corroborated by independent eye witnesses even though the Ming case notes that statements against penal interest do not need to be corroborated.
Chatman tries to distinguish Ming by noting that Broussard’s statement that he was with Chatman when Chatman hid the stolen cash did not implicate Broussard’s penal interest. Broussard, however, was Chatman’s accomplice and was later charged himself with robbing and murdering the victim. The fact that Chatman hid the stolen cash rather than Broussard did not make Broussard’s statement exculpatory or exonerate him for the victim’s death.
Chatman also argues that Broussard’s statements to Detective Herman were not trustworthy because Broussard was in custody as a suspect. The affidavit does not state that Broussard was in custody, only that he was interviewed by Herman. The magistrate would have no reason to believe from the affidavit that Broussard was in custody when he provided Herman with the information used in the search warrant.
In his testimony during the preliminary hearing, Herman testified that Broussard voluntarily went to the police station to talk to Herman about the incident. The search warrant refers to Broussard’s arrest, but does not indicate that he was arrested during questioning or that he was subject to a custodial interrogation.
Where there are no corroborative facts identifying the perpetrators of crimes but there are corroborative facts about the crimes committed, such corroboration may not be sufficient to convict the perpetrators, but it is sufficient to support a magistrate’s conclusion that information provided by an untested, but known, informant was reliable for issuance of a search warrant. (People v. Cooks (1983) 141 Cal.App.3d 224, 295 (Cooks).) Even if we accept Chatman’s argument that Broussard was an untested informant, there were other corroborative facts concerning the crimes committed. Some of these corroborative facts included identifying information for Chatman. Furthermore, when the untested informant states that he or she has participated in the crime, any declarations against penal interest tend to add credibility to the informant’s statements. (Cooks, supra, 141 Cal.App.3d at p. 295.)
Broussard’s statement to Herman was a declaration against his penal interest and did not only implicate Chatman. Under the Ming decision, such an admission is sufficient to create probable cause even without corroboration. Here, independent citizen observers provided specific details of the defendants’ crimes, including identifying information. Investigators were able to determine from eye witness descriptions of the vehicle and the license plate number that Chatman’s vehicle was used in the crimes. The car was found by patrol units near Chatman’s residence. Investigators verified Chatman’s residence. We agree with respondent that this information, combined with Broussard’s statements, provided probable cause for the magistrate to issue the search warrant. The trial court did not err in denying Chatman’s motion to quash.
SENTENCING
Chatman contends the case must be remanded for resentencing because the trial court failed to consider probation as a sentencing option. Chatman argues he was sentenced to only a maximum term, not a stipulated term, and that under People v. Buttram (2003) 30 Cal.4th 773 (Buttram), the trial court was required to consider defense counsel’s request for probation. We disagree.
Change of Plea and Sentencing Hearings
At Chatman’s change of plea hearing, the prosecutor stated appellant would admit an amended count of second degree murder “for a term of 15 years to life.” The prosecutor stated that appellant would have to serve at least 15 years. Parole officers indicated that those serving sentences of 15 years to life are paroled at 21 years. The prosecutor further explained Chatman would have to serve 15 years in prison before he would be eligible for parole.
Broussard entered a no contest plea to a count of voluntary manslaughter with a maximum term of 11 years. The parties expressly called Broussard’s term a lid.
The trial court stated it was willing to go along with Chatman admitting a count of second degree murder with a sentence of 15 years to life. The court explained to Chatman it could not guarantee when he would be paroled because that determination was up to the Department of Corrections. The court further cautioned that appellant’s parole would be for life because his sentence was a life sentence. The parties reiterated that Chatman would have to serve a minimum of 15 years in prison. Chatman’s attorney then noted that with custody credits, appellant would get some credit for time he had already served and would first be eligible for a parole hearing in about 13 years.
The probation officer did not recommend probation. Defense counsel argued at the sentencing hearing that there was no evidence Chatman willfully inflicted great bodily injury and the court should consider probation. The prosecutor argued that the court had no sentencing discretion and Chatman’s sentence had to be 15 years to life. Defense counsel reiterated his argument that Chatman should receive probation and then stated that the condition of the plea agreement that appellant receive a term of 15 years to life was only a lid sentence.
The trial court noted Chatman entered his plea on condition that he would be sentenced to prison for 15 years to life and asked how he had sentencing discretion. Defense counsel repeated his argument that the sentence was a lid. The court replied that there might be a lid in Broussard’s case, but not for Chatman. The court found no circumstances in mitigation and the fact that the homicide occurred during a robbery to be a circumstance in aggravation. The court stated the aggravating factor outweighed the nonexistent factors in mitigation.
The court noted Chatman was only eligible for probation under unusual circumstances. The court found that Chatman’s robbery of a man who was destitute, disabled, and Chatman’s callous treatment of the victim would preclude any grant of probation. The court sentenced Chatman to prison for 15 years to life.
Analysis
Chatman initially argues that his lack of a certificate of probable cause does not restrict him from challenging his sentence because, as with the defendant in Buttram, his sentence was only a statutory maximum sentence for a so called “lid” term. In Buttram, the defendant entered into a plea agreement wherein there was an indicated maximum sentence of six years. (Buttram, supra, 30 Cal.4th at pp. 778-779.) The defendant argued at sentencing that he should be considered for treatment at the California Rehabilitation Center (CRC). (Id. at p. 778.) The trial court rejected this contention and sentenced the defendant to the maximum six-year term. (Id. at p. 779.)
The defendant failed to obtain a certificate of probable cause but challenged the trial court’s failure to consider a lower prison term or his commitment to CRC. The Supreme Court in Buttram held that a certificate of probable cause is not required where a defendant enters into a plea agreement with a lid or maximum term and is later sentenced to that term. Buttram noted that unlike defendants who enter into a plea agreement with a specified sentence, defendants who enter into plea agreements with lid sentences are permitted to argue at the sentencing hearing for less than the maximum term. Furthermore, in doing so, defendants are acting within the expectations of the plea agreement itself and such action does not constitute an attack on the plea agreement itself. (Buttram, supra, 30 Cal.4th at pp. 785-787, 790-791.)
Here, in contrast to Buttram, the defendant received a defined term of 15 years to life. He was told several times during the change of plea hearing that he would serve at least 15 years. Although the parties did not expressly say so at the change of plea hearing, this was a specified sentence. The fact that appellant’s sentence is for an indeterminate rather than a determinate term does not make his sentence a lid sentence. Trial and appellate counsel have mischaracterized the nature of appellant’s sentence.
In People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon), the defendant was sentenced to an indeterminate sentence of life with the possibility of parole plus 12 years pursuant to a negotiated plea agreement. (Id. at p. 73.) The defendant filed an appeal challenging the constitutionality of his sentence as cruel and unusual punishment, but failed to obtain a certificate of probable cause. (Id. at p. 74.) Panizzon held that where a defendant enters into a negotiated plea for a specified term, he or she waives his right to challenge the sentence on appeal absent a certificate of probable cause. (Id. at pp. 78-80, 84-86, 88-89.)
We find this case factually indistinguishable from Panizzon, a case that also involved an indeterminate term, although there was also an additional determinate sentence of 12 years. The Buttram case is factually inapposite from this case. Chatman’s failure to secure a certificate of probable cause is fatal to the issue he raises on appeal concerning his sentence.
We further note that the trial court made a finding on the record that even if it could grant probation upon a showing of unusual circumstances, it would not do so in Chatman’s case. The court not only relied on the aggravating factor that Chatman committed a homicide in the course of the robbery, but that his actions were callous toward a particularly vulnerable victim. Even if other factors noted by the trial court were not applicable because they were an element of the crime, it is clear the trial court was bound by the specified term of the plea agreement and, in any event, would not have granted Chatman probation. If any sentencing error occurred here, it was harmless because it is not more reasonably probable that the trial court would place Chatman on probation if this case were remanded. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
DISPOSITION
The judgment is affirmed.