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People v. Cummings

California Court of Appeals, Third District, Sacramento
Mar 17, 2008
No. C050898 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL CUMMINGS, Defendant and Appellant. C050898 California Court of Appeal, Third District, Sacramento March 17, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 04F06266

BUTZ, J.

Defendant John Michael Cummings pleaded no contest to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted two of three alleged prior controlled substance convictions (§ 11370.2, subd. (a)). Consistent with the negotiated plea agreement, the trial court sentenced him to an aggregate state prison term of eight years.

Undesignated statutory references are to the Health and Safety Code.

On appeal, defendant contends (1) the trial court erred in denying his motion to traverse the search warrant and to suppress evidence; (2) his motion to suppress should have been granted because the search warrant was not supported by probable cause; (3) the trial court erred in denying his request to disclose the identity of the confidential informant; (4) his Boykin-Tahl rights were neither given nor waived, rendering his admission to the corrected prior conviction neither voluntary nor intelligent; and (5) the trial court’s nunc pro tunc modification of the sentence was improper. We shall affirm the judgment.

Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl).

FACTUAL AND PROCEDURAL BACKGROUND

On July 15, 2004, Sacramento County Sheriff Department deputies served a search warrant at defendant’s home, where they found approximately four ounces of methamphetamine, along with large quantities of cash, packaging, a scale and pay-owe sheets.

By a felony complaint deemed to be the operative information, defendant was charged with one count of possession of methamphetamine for purpose of sale (§ 11378--count one) and one count of possession of cocaine for purpose of sale (§ 11351--count two). The information also alleged three prior drug-related convictions within the meaning of section 11370.2, subdivision (a). Defendant entered a plea of not guilty to both counts and denied the prior conviction allegations.

Defendant moved to traverse the search warrant, quash the search warrant and suppress evidence pursuant to Penal Code section 1538.5, and to disclose the identity of the confidential informant. Following an in camera hearing which included a review of the sealed affidavit of sheriff’s department detective Scott Hyatt in support of the search warrant, the court denied the motions.

The facts and procedure regarding those motions will be discussed in more detail as necessary in the Discussion portion of this opinion.

Defendant entered a negotiated plea of no contest to count one and admitted two prior drug-related convictions (one on September 1, 1988 and one on July 3, 1991) in exchange for dismissal of the remaining charges against him. The court sentenced him to the midterm of two years as to count one, plus two consecutive three-year terms for the prior convictions, for an aggregate sentence of eight years in state prison.

On September 28, 2005, defendant filed a timely notice of appeal and request for a certificate of probable cause.

On November 7, 2005, the trial court recalled defendant’s sentence pursuant to Penal Code section 1170, subdivision (d) based on defendant’s erroneous admission to a prior conviction he had not committed as alleged.

On January 6, 2006, with defense counsel’s approval, the court permitted the prosecution to amend the information by interlineation, correcting the second alleged prior to reflect a violation of section 11379 on December 19, 1995. Defendant readmitted the second prior conviction allegation, as amended, and the court modified the sentence nunc pro tunc, relating defendant’s admission of that prior conviction back to the original date of sentencing--August 2, 2005--while preserving credits as previously ordered and adding any additional credits accrued as of that date.

On January 13, 2006, defendant filed a second notice of appeal and request for certificate of probable cause. The trial court initially denied defendant’s request for a certificate of probable cause on February 2, 2006, but subsequently vacated that order and granted the request on June 8, 2006.

DISCUSSION

I. Denial of Motions to Traverse the Search Warrant and Suppress Evidence

Defendant first contends the trial court erred in denying his motions to traverse the search warrant and to suppress evidence. He asks this court to review the transcript of the in camera hearing and the sealed portion of the affidavit in support of the search warrant to (1) confirm his claim that there were material omissions and/or misrepresentations in the affidavit, (2) determine whether or not the confidential informant should have been present at the in camera hearing, and (3) determine whether the questions submitted by defendant were asked as required by People v. Hobbs (1994) 7 Cal.4th 948, 973 (Hobbs). We address each issue in the order it was raised.

A. Material Omissions and/or Misrepresentations in the Affidavit

“[A] defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297 (Bradford), citing Franks v. Delaware (1978) 438 U.S. 154, 155-156 [57 L.Ed.2d 667, 672] (Franks).) Innocent or negligent misstatements will not be excised. (Franks, at pp. 170-171 [57 L.Ed.2d at pp. 681-682].)

“[T]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.” (Franks, supra, 438 U.S. at p. 171 [57 L.Ed.2d at p. 682].) Defendant bears the burden of showing material omissions in the affidavit. (Bradford, supra, 15 Cal.4th at p. 1297.)

At the in camera hearing here, the trial court reviewed the sealed affidavit prepared by Detective Hyatt, who was then questioned regarding the contents of that document. Defendant contends the affidavit contains a material misstatement because it “omits the fact that the ‘white male’ was not [defendant].” However, the affidavit does not identify the “white male” as defendant and, according to Hyatt, he could not be sure whether that individual was or was not defendant. The trial court adequately addressed the issue and found that there were no material misstatements made by Hyatt.

Defendant also contends Detective Hyatt omitted from his affidavit a subsequent representation he made in the request for bail enhancement that defendant was involved in narcotics activity in front of his house while children rode by on bicycles. The omission, he claims, amounts to a material misrepresentation. We disagree. The trial court heard argument from counsel on that very point at the hearing on defendant’s bail reduction motion. Finding the allegation that defendant conducted narcotics activities in front of children “not true,” but without ruling that Hyatt made the untrue representation negligently or with an intent to deceive for purposes of enhancing bail, the court nonetheless found a basis for increasing bail, characterizing defendant’s activities as “a larger-scale operation than simply what could be reflected by the charges alone.” Because the court found the remainder of the information before it sufficient to enhance defendant’s bail, we infer that the untrue information was not material to the issue of bail enhancement.

Statements found to be deliberately false or made in reckless disregard of the truth are excised and the affidavit’s remaining contents must be judged to determine if they are sufficient to justify a finding of probable cause. (Bradford, supra, 15 Cal.4th at p. 1297.) “A defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause.” (Ibid.)

Here, what was found to be absent from the affidavit was a subsequent statement the trial court found to be untrue. Thus, its inclusion in the affidavit would only have misled the court in its decision to issue the search warrant. However, it was not included in the affidavit and therefore was not material to that decision and, because it was found to be untrue, we need not add it back into the affidavit for purposes of testing the affidavit for probable cause.

Defendant also urges that information regarding any unsuccessful controlled buys by the confidential informant should have been included in the affidavit. We find no evidence in the record that an unsuccessful buy occurred.

Finally, defendant urges that, because the confidential informant’s description of defendant was “very generic,” it is possible the informant “‘never personally observed [defendant] at all and was simply shown a DMV description of [defendant] by [investigating] officers.’” To the contrary, there is sufficient evidence in the record that the informant personally observed defendant.

We reject defendant’s claim that the affidavit contains any material omissions and/or misrepresentations.

B. Determination Regarding Confidential Informant’s Presence at In Camera Hearing

Defendant requests that we review the record to determine whether the trial court was correct in not requiring the confidential informant’s presence at the in camera hearing. Our review of the entire record, including the transcript from the in camera hearing and the sealed portion of the affidavit, leads us to conclude there was no error in that regard.

C. Obtaining Responses to Defendant’s Questions Per Hobbs

During an in camera hearing held pursuant to a defense motion to quash or traverse a search warrant, the prosecutor may be present, but defendant and his counsel are excluded. (Hobbs, supra, 7 Cal.4th at pp. 972-973.) Defense counsel may, however, submit written questions that shall be asked by the trial judge of any witness called to testify at the proceeding. (Id. at p. 973.)

Defendant asks us to determine whether the questions he submitted were asked by the court and answered by the affiant in accordance with Hobbs. A review of the transcript reveals that each of the questions provided by defendant was asked verbatim, and a satisfactory response given by Detective Hyatt. Consequently, there is no Hobbs error.

II. Probable Cause for Search Warrant

Defendant contends denial of his motion to suppress was required because the search warrant lacked probable cause. We disagree.

Probable cause must be based on information in an affidavit providing a substantial basis from which the magistrate may reasonably conclude there is a fair probability the person has committed a crime or a place contains contraband or evidence of a crime. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].) “[P]robable cause will not be provided by conclusionary information or anonymous informants, but neither a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities.” (People v. Ramey (1976) 16 Cal.3d 263, 269.)

Here, Detective Hyatt’s affidavit describes information regarding (1) his background, training and experience in narcotics enforcement, (2) information he obtained from a reliable confidential informant regarding defendant and his involvement in the possession and sale of methamphetamine, (3) Hyatt’s own observations of defendant obtained through surveillance on defendant’s residence on at least four occasions, and (4) Hyatt’s research of defendant through the sheriff’s department computer system, utility company records and DMV records. Hyatt observed conduct consistent with narcotics sales at a particular residence, and confirmed the residence was defendant’s. As we explained earlier in part I.A. of this opinion, the affidavit contains no material omissions or misrepresentations, nor was there any improper information to be excised from that document. We conclude that the affidavit was supported by probable cause.

III. Denial of Request to Disclose Identity of Confidential Informant

Defendant next contends the trial court’s denial of his request to disclose the identity of the confidential informant was error. We are not persuaded.

It is defendant’s burden to show the confidential informant may be a material witness on the issue of his guilt or innocence. (People v. Lee (1985) 164 Cal.App.3d 830, 835.) In order to meet that burden, defendant must provide evidence to demonstrate “‘a reasonable possibility that the [confidential] informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.’” (People v. Borunda (1974) 11 Cal.3d 523, 527, quoting People v. Garcia (1967) 67 Cal.2d 830, 840, italics omitted.) Without providing any such evidence here, defendant simply asks us to “review the sealed materials to determine the propriety of the trial court’s ruling” denying his request to reveal the identity of the confidential informant.

To be fair, defendant mentions, in a footnote, that his motion to disclose the confidential informant’s identity “emphasized that the affidavit stated that the informant had only seen [defendant] in possession of methamphetamine, rather than engaged in any sales, and also emphasized that the informant could provide information impeaching Detective Hyatt’s investigation.”

According to defendant’s motion, it was possible the confidential informant had exculpatory evidence, given the absence of information in the published portion of the affidavit to suggest the informant saw defendant engage in the actual sale of narcotics.

A review of the record supports the trial court’s conclusion that the confidential informant had no exculpatory evidence. The informant provided information to law enforcement that defendant was involved in selling methamphetamine and that the informant had personally observed defendant in possession of methamphetamine several days prior to the preparation of the affidavit in support of the search warrant. Detective Hyatt, on the other hand, observed traffic in front of defendant’s home consistent with the sale of narcotics and, at the time of the arrest, found defendant to be in possession of items consistent with the sale of narcotics (e.g., electronic scale, packaging materials, pay-owe sheets, cash and significant amounts of controlled substances). Not being a percipient witness to or participating in defendant’s arrest or the search of his home, the confidential informant could not provide information (exculpatory or otherwise) regarding the charges incident to those events. (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 420.)

Defendant also argued the confidential informant might be able to impeach Detective Hyatt’s testimony and assist in the defense due to the fact that the informant’s description of defendant was “generic”; there was a discrepancy in the floor plan drawn by Hyatt; and there were three other white males detained at the time of defendant’s arrest who could have been engaged in selling drugs. The transcript and the sealed portion of Hyatt’s affidavit demonstrate that the court adequately addressed each of those issues.

We find no error in the court’s denial of defendant’s motion to disclose the identity of the confidential informant.

IV. Provision of Boykin-Tahl Rights in Conjunction with Defendant’s Admission of Corrected Prior Conviction

Defendant contends his admission of the prior conviction, as corrected, was not voluntary or intelligent because he was neither advised of nor did he waive his rights under Boykin-Tahl. We disagree.

Under the Boykin-Tahl rule, when a trial court accepts a guilty plea, it should elicit from the defendant a waiver of the constitutional rights to a jury trial, to confront the People’s evidence, and to the privilege against self-incrimination. (Boykin, supra, 395 U.S. 238 [23 L.Ed.2d 274]; Tahl, supra, 1 Cal.3d 122.) The Boykin-Tahl rule applies to admissions of prior conviction allegations. (In re Yurko (1974) 10 Cal.3d 857, 860, 863.)

In People v. Howard (1992) 1 Cal.4th 1132, the California Supreme Court concluded that the failure of a trial court to obtain explicit waivers of the Boykin-Tahl rights does not require reversal in all cases. Instead “a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (Howard, at p. 1175.) Trial courts are still supposed to elicit waivers of the Boykin-Tahl rights when accepting an admission to a prior conviction, but trial court mistakes in such cases will not result in overturning the finding on the prior if the record shows the admission was knowing and voluntary. (Howard, at pp. 1178-1179.)

There is clear evidence here that defendant’s admission was knowing and voluntary. When he entered his plea and originally admitted the prior conviction allegations on August 2, 2005, he was given full Boykin-Tahl admonishments by the court. At the resentencing hearing on January 6, 2006, defendant was represented by counsel, who fully participated in the proceeding on defendant’s behalf, confirmed defendant had been advised “as to his exposure,” acknowledged defendant “reviewed the transcript of the plea of the prior” and was satisfied that it was accurate, and advised the court of the correct Health and Safety Code section under which the prior conviction was charged. Counsel also concurred in defendant’s admission to the corrected prior, and agreed the court could “modify the sentence nunc pro tunc.” We find defendant’s admission to the corrected prior to have been knowing and intelligent.

V. Modification of Sentence Nunc Pro Tunc

A nunc pro tunc order is generally limited to correcting clerical errors; “‘a nunc pro tunc order cannot declare that something was done which was not done.’” (Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256.)

The general rule is that a court may, at any time, and with or without notice, or on its own motion, correct a judgment or order by a nunc pro tunc order so as to make the judgment or order conform to the judicial decision actually made. (Uhl v. Johnson (1956) 141 Cal.App.2d 659, 665; Benway v. Benway (1945) 69 Cal.App.2d 574, 579.) While a court cannot use a nunc pro tunc order to correct a judicial mistake, “errors due to the failure of a record to speak the truth or to conform to the decision rendered, and clerical misprisions generally, of which the record affords the evidence, may be corrected at any time by the court . . . .” (Benway, at p. 580.)

Here, the nunc pro tunc order merely corrected the sentence to confirm the rights of the parties as they were established by the original judgment pronounced by the court, and as all parties knew them to be so established. While the court may have been mistaken in its assessment of the resulting custody credits, there is no dispute that the corrected sentence left defendant no worse off than he was prior to entry of the nunc pro tuncorder. Defendant acknowledges as much by his request that the matter be remanded so that he “may be properly resentenced to eight years pursuant to the negotiated disposition”--the exact sentence he received here. Any error in the manner in which the sentence was corrected was therefore harmless.

VI. Settlement of the Record

On June 12, 2007, the trial court conducted a hearing to confirm that the sealed portion of the affidavit in Detective Hyatt’s custody was in fact the same document reviewed by the court at the April 8, 2005 in camera hearing. After reviewing both the sealed and unsealed portions of the affidavit provided by Hyatt, the court concluded that both documents were in fact those reviewed by the court at the April 8, 2005 hearing and ordered that the previously sealed portion of the affidavit be resealed and transmitted along with the unsealed portion to this court.

Defendant contends his due process rights were violated because he was not provided adequate notice of the hearing; the sealed portion of the affidavit was not adequately authenticated; he was not allowed to confront and cross-examine Detective Hyatt; and he was deprived of the opportunity to be heard at the hearing and to have the effective assistance of counsel. We are of the opinion that defendant was not entitled to any of those rights because it was not necessary for the court to conduct a noticed, contested hearing for the purpose of retrieving the sealed document and authenticating it. (See People v. Martinez (2005) 132 Cal.App.4th 233, 239.) In any event, the court having confirmed that the sealed portion of Hyatt’s affidavit maintained in Hyatt’s possession was indeed the same as that reviewed by the court at the in camera hearing, we conclude that the record was properly settled.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND , P.J. MORRISON , J.


Summaries of

People v. Cummings

California Court of Appeals, Third District, Sacramento
Mar 17, 2008
No. C050898 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Cummings

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL CUMMINGS, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 17, 2008

Citations

No. C050898 (Cal. Ct. App. Mar. 17, 2008)