Opinion
A150793
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. MARK CHRISTOPHER PIKE, Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-161223-3)
After a jury trial, appellant Mark Christopher Pike (Pike) was found guilty of a number of felonies arising out of his involvement in a July 2016 domestic violence incident. On appeal, Pike contends that the trial court erred in denying his motion to quash a search warrant for his cell phone on the basis that the probable cause showing in the supporting affidavit was conclusory and inadequate. Pike further asserts that the imposition of a probation report fee in accordance with section 1203.1b was improper under the facts of this case. Although we agree that the probation report fee was erroneously imposed and therefore strike it, we otherwise affirm.
I. BACKGROUND
On August 4, 2016, the Contra Costa County District Attorney (District Attorney) filed an information, charging Pike with injuring a spouse, cohabitant, fiancée or person with a past or present dating relationship or child's parent (Pen. Code, § 273.5, subd. (a), count one), assault with a deadly weapon (id., § 245, subd. (a)(1), count two), and assault by means likely to produce great bodily injury (id., § 245, subd. (a)(4), count three), all stemming from a July 4, 2016, domestic violence assault during which N.W.—a former girlfriend and mother of his infant daughter—was injured. As to counts one and three, the information further alleged personal use of a deadly weapon in accordance with section 12022, subd. (b)(1). Counts two and three included a section 969f special allegation that Pike personally inflicted great bodily injury and personally used a dangerous and deadly weapon. And all three counts were subject to enhancement under section 12022.7, subdivision (e), for personal infliction of great bodily injury under circumstances involving domestic violence. The information additionally alleged that Pike committed the charged allegations while on felony probation (§ 1203, subd. (k)), that he had suffered a prior serious felony (§§ 667, subds. (d) & (e), 1170.12, subd. (b)), and that he had served a prior prison term (§ 667.5, subd. (b).)
All statutory references are to the Penal Code unless otherwise specified. All rule references are to the California Rules of Court.
During the investigation underlying these charges, Detective Riddick—an officer assigned to the domestic battery unit of the Pittsburgh Police Department—sought a search warrant for the collection of certain information potentially contained in Pike's cell phone, which had been booked into evidence upon Pike's arrest. In particular, the search warrant sought: "All call logs (incoming and outgoing calls), phone books, as well as text-based messages and photographs stored in the Android LG cellular telephone, related to communication with [N.W.] or assault of [N.W.] on or about July 3, 4 and 5, 2016." Detective Riddick declared that she believed the information sought would tend to show that a felony had been committed or that a particular person had committed a felony.
The affidavit submitted to supply probable cause for the issuance of the warrant contained the following facts: On July 4, 2016, Pittsburgh police responded to a call regarding "a female bleeding heavily from the head, who had driven her vehicle off the road into the field of a residential area, crashed into shrubbery, and ran into a residential rear yard screaming for help." The victim, N.W., stated that "her boyfriend Mark Pike had struck her numerous times in her head with a tire jack steel pipe and strangled her with a bicycle lock cable at her residence in Pittsburgh. She sustained a laceration [to] her head and was in and out of consciousness while speaking with the Antioch police officers." N.W. was transported to the hospital for medical attention and officers who responded to N.W.'s residence located a long steel pipe, a large amount of blood on the pipe and floor, and a bicycle lock cable with blood on it.
The affidavit further stated that Pike, when located by the police and arrested, denied being involved in the altercation with N.W. Instead, he claimed that he had been with his new girlfriend, M.H., that night. When a police officer contacted M.H., she confirmed that Pike had been with her the entire evening and morning in question. A criminal history check revealed that Pike had been arrested four times between 2005 and 2014 for felony domestic battery and/or assault with a deadly weapon. In addition, he had two recent arrests for being a felon in possession of a firearm and/or ammunition. The affiant further declared: "Pike has numerous arrests for resisting arrest, sales of drugs, possession of stolen property, possession of drugs, burglary, and possession of stolen vehicles. There are several prior domestic violence reports involving him and [N.W.], who have been in a dating relationship for approximately five years. Pike and [N.W.] have been contacted by the police together on numerous prior occasions."
Detective Riddick also indicated that a "reliable confidential informant" had disclosed to police that Pike stated he was responsible for assaulting N.W. Finally, Detective Riddick detailed her education and training, including six years as a police officer, involvement in over 250 criminal felony investigations, and acting, on at least 100 occasions, as lead investigator during the investigation of serious felony crimes against persons. Based on her experience and training, Detective Riddick indicated that she believed Pike to be involved in the attempted murder of N.W. and opined that "it is common for individuals involved in domestic violence to often communicate with the victim via cell phone and text messages."
After a magistrate signed off on the warrant, Detective Riddick extracted the contents of Pike's cell phone. Among the information obtained was a text message sent from the cell phone to another individual during the relevant timeframe, stating "i whoopd her ass & sent her 2 da hospital." In October 2016, Pike's first trial ended in a mistrial. Thereafter, Pike filed a motion pursuant to section 1538.5 to quash the cell phone search warrant and suppress any evidence obtained through its execution, arguing that the underlying affidavit failed to establish probable cause for the search.
The trial court denied the motion and, after the conclusion of the second trial, the jury found Pike guilty as charged. At sentencing on February 21, 2017, the trial court granted Pike's request to strike prior allegations in the interest of justice and sentenced him to a total of 10 years in state prison. This timely appeal followed.
II. DISCUSSION
A. Adequacy of Search Warrant Affidavit
Pike's primary contention on appeal is that the trial court erroneously denied his motion to quash the search warrant covering his cell phone because the supporting affidavit failed to establish a reasonable belief that evidence of criminality would be found there. A defendant moving to quash a warrant asserts that the affidavit supporting the warrant fails as a matter of law to set forth sufficient competent evidence to find probable cause. (People v. Hobbs (1994) 7 Cal.4th 948, 975.) "In Illinois v. Gates (1983) 462 U.S. 213, 238, the court reaffirmed the 'totality-of-the-circumstances' analysis for probable cause determinations by a magistrate. 'The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed.' " (People v. Lieng (2010) 190 Cal.App.4th 1213, 1228-1229 (Lieng).)
"Whether an affidavit provided the magistrate ' "substantial basis" ' for concluding there was probable cause is an issue of law 'subject to our independent review.' [Citation.] But, because '[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause,' we accord deference to the magistrate's determination and ' "doubtful or marginal" ' cases are to be resolved with a preference for upholding a search under a warrant." (People v. French (2011) 201 Cal.App.4th 1307, 1315 (French).) In addition, because courts have a " 'strong policy favoring search by warrant rather than upon other allowable basis[,]' . . . when, as here, the police do obtain a warrant, that warrant is presumed valid. 'Thus if the defendant attempts to quash a search warrant, as defendant here seeks to do, the burden rests on him.' " (People v. Amador (2000) 24 Cal.4th 387, 393.)
In the present case, Pike challenges the sufficiency of the affidavit supporting the cell phone warrant on numerous grounds. He argues, for instance, that the responding police officer's report was not attached to the affidavit and that Detective Riddick's factual summary, at most, established that N.W. named Pike as her attacker and that Pike denied the allegation and provided an alibi witness. Pike further claims that the affidavit's description of the domestic violence history between N.W. and Pike was too vague to support a probable cause finding. Next, Pike asserts that the statement of the "confidential reliable informant" was unhelpful to the probable cause calculus because there were no facts establishing the informant's reliability. And finally, Pike contends that allowing Detective Riddick's statement that, in her experience, people involved in domestic violence often communicate by cell phones, to support probable cause would, in effect, be so generally applicable as to render the warrant requirement a nullity.
We disagree, and have no difficulty concluding that the magistrate in this case had a "substantial basis" for finding probable cause. In this regard, we note that Pike's many arguments appear to ignore the required focus on the totality of the circumstances when making probable cause determinations. (See Lieng, supra, 190 Cal.App.4th at pp. 1228-1229.) For instance, while a conclusory assertion that a confidential informant is reliable may be inadequate to establish reliability (see French, supra, 201 Cal.App.4th at p. 1317), even statements made by an unreliable informant with no specified basis of knowledge may be weighed in a totality-of-the-circumstances analysis where the police have supplied corroborating details. (Id. at p. 1322.) Here, the police investigation disclosed that N.W. had accused Pike of the domestic assault; that Pike had a number of prior arrests for felony domestic battery; that Pike and N.W. had been involved in a relationship for five years, despite previous reports of domestic violence involving the two of them; and that the couple "ha[d] been contacted by the police together on numerous prior occasions." When viewed against this factual backdrop, Detective Riddick's assertion, based on her significant experience, that it is common for a perpetrator of domestic violence to communicate with his or her victim via cell phone, was not a gross generalization, but instead supported the conclusion in this particular case that there was a fair probability Pike's cell phone contained evidence relevant to the assault.
In fact, the trial court recognized as much, stating in its denial of Pike's motion to quash that it was dealing with a very fact-based situation from which no sweeping generalizations could be made. The court went on to reason: "So between the officer being a fairly experienced officer and her conclusions being given weight, and the specific facts here which don't show simply an overnight acquaintance but rather an ongoing pattern and practice of activity of being together even after domestic violence has occurred, it's eminently reasonable for the magistrate to have agreed with the detective that the cell phone would be an instrumentality of the crime and would possibly contain evidence on it." We see no reason to disturb this thoughtful determination. B. Probation Report Fee (§ 1203 .1b)
Appellant additionally contends that a probation report fee was erroneously imposed on him at sentencing. Section 1203.1b provides in relevant part that when a defendant is convicted and "is the subject of any preplea or presentence investigation and report," the probation officer—taking into account any amount the defendant is ordered to pay in fines, assessments and restitution—must make a determination of the defendant's ability to pay all or a portion of the reasonable cost of the preparation of the presentence report. (§ 1203.1b, subd. (a); People v. Trujillo (2015) 60 Cal.4th 850, 855 (Trujillo).) In this case, the trial court clearly contemplated that a presentence probation report would be prepared. However, on the scheduled sentencing date, the court noted that, although a probation report had been ordered, the court had not received it. Both parties confirmed that they also had not received a report. At that point, Pike agreed to waive the probation report in order "to go forward with sentencing" as is permitted under subdivision (b)(4) of section 1203. Nevertheless, at the conclusion of the sentencing proceedings, the trial court imposed a probation report fee of $176, and this fee is reflected both in the court minutes and on the related abstract of judgment.
Pike's argument is straightforward. He does not challenge imposition of the probation report fee without inquiry into his ability to pay. Rather, he claims that any probation report fee was unauthorized in this case because no probation report was presented to the sentencing court and there is no evidence that one was ever prepared.
Such a " 'clear and correctable' " legal error can be brought to this court's attention despite the absence of an objection on this basis in the trial court. (See People v. Scott (1994) 9 Cal.4th 331, 334; see also Trujillo, supra, 60 Cal.4th at pp. 856-857.)
The Attorney General, in contrast, suggests that, even though the probation report was not ready at sentencing, the imposition of a probation report fee was appropriate here because other statutes require preparation of a probation report when a defendant is committed to the Department of Corrections and Rehabilitation, and thus a probation report was necessarily prepared in this case. Specifically, pursuant to subdivision (b)(4) of section 1203, if a defendant waives preparation of a presentence report and "the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c." (See also § 1203c, subd. (a)(1) ["whenever a person is committed to an institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . it shall be the duty of the probation officer of the county from which the person is committed to send to the Department of Corrections and Rehabilitation a report of the circumstances surrounding the offense and the prior record and history of the defendant, as may be required by the Secretary of the Department of Corrections and Rehabilitation"].)
The Attorney General's argument, however, fails to acknowledge the plain language of the statutes at issue. Section 1203.1b allows for recoupment of costs for "conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203." (§ 1203.1b, subd. (a), italics added.) As stated above, however, a defendant can waive a section 1203 presentence report, as Pike did here. Under such circumstances, section 1203 provides that, if "the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c ." (§ 1203, subd. (b)(4), italics added.) Finally, although section 1203c deems "a report of the circumstances surrounding the offense and the prior record and history of the defendant, prepared by the probation officer on request of the court and filed with the court before sentence" to meet the requirements of a section 1203c report, it is clear that the two report requirements are distinct. (§ 1203c, subd. (b), italics added; see id., subd. (a)(1) [requiring report "as may be required by the Secretary of the Department of Corrections"]; id., subd. (b) [section 1203c reports shall generally "be prepared in the form prescribed by the administrator following consultation with the Board of State and Community Corrections"]; see also rule 4.411(b) [waiver of presentence report "does not affect the requirement under section 1203c that a probation report be created when the court commits a person to state prison"].) And, there is no provision in section 1203c which allows for the imposition of a fee based on the preparation of a postsentence report pursuant to that statute.
Thus, there appears to be no statutory basis for imposition of a probation report fee on this record. While we recognize that "Section 1203.1b and other recoupment statutes reflect a strong legislative policy in favor of shifting the costs stemming from criminal acts back to the convicted defendant" (People v. Washington (2002) 100 Cal.App.4th 590, 593), we cannot create a right to recoupment where none exists. Here, the relevant statutes, when read as a whole, provide for reimbursement only with respect to the preparation of presentence reports. We must therefore strike the $176 probation report fee imposed in this case.
In this regard, we note that a prosecutor or court interested in recoupment of probation costs under similar circumstances could refuse to stipulate or consent to the defendant's waiver. (See § 1203, subd. (b)(4) [waiver must be by written or oral stipulation and consented to by the court]; see also rule 4.411(b) ["In deciding whether to consent to the waiver, the court should consider whether the information in the report would assist in the resolution of any current or future sentencing issues, or would assist in the effective supervision of the person."].) --------
III. DISPOSITION
The trial court is directed to strike the imposition of the $176 probation report fee, to prepare corrected minutes and a modified abstract of judgment consistent with this opinion, and to forward a copy of the modified abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Reardon, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Tucher, J.