Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0700105
Richman, J.
Defendant E.M. timely appeals from the juvenile court’s March 13, 2007 order declaring him a ward of the court, sentencing him to an out-of-home placement, and setting the maximum term of confinement at six years. Defendant’s appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, and has identified an issue “in the record that might arguably support the appeal.” (Anders v. California (1967) 386 U.S. 738, 744.) Counsel describes the issue as follows: “Did the juvenile court err by denying [defendant’s] suppression motion because the only facts supporting probable cause to arrest [defendant] were the statements of his co-participants who were ‘themselves the focus of pending criminal charges or investigations [and thus their statements are] inherently suspect’? (People v. Duarte (2001) 24 Cal.4th 603, 617 . . .; see also People v. Schulle (1975) 51 Cal.App.3d 809, 814, 815; People v. Kurland (1980) 28 Cal.3d 376, 393.) Or, under the circumstances, did the co-participants’ statements provide sufficient probable cause because they corroborated each other? (People v. Green (1981) 117 Cal.App.3d 199, 205 . . . [‘[C]orroboration of an unreliable informant’s statements may be met by those of another, if they were interviewed independently, at a different time and place.’]; see also People v. Fein (1971) 4 Cal.3d 747, 753, disapproved on other grounds by People v. Palaschak (1995) 9 Cal.4th 1236, 1241.)” After reviewing the entire record, we conclude that the trial court did not err in denying defendant’s motion to suppress and that there is no issue warranting further briefing.
On January 16, 2007, the Contra Costa County District Attorney filed a juvenile petition charging defendant with second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and use of a deadly or dangerous weapon (a B.B. gun) in the commission of that robbery (Pen. Code, § 12022, subd. (b)(1)). On February 13, 2007, defendant filed a motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1. Defendant sought to suppress the incriminating statements he made after his arrest and during his custodial interrogation by the police, on the ground that the statements were the product of an unlawful arrest made in violation of his Fourth Amendment rights. Defendant argued there was no probable cause to support his arrest because his arrest was based solely on the statements of co-participants who were arrested before him and who made the statements during custodial interrogation.
On February 20, 2007, a hearing was held on the suppression motion. According to testimony at the hearing, on January 9, 2007, at approximately 3:00 p.m., Giuseppe Abello was walking away from the El Cerrito BART station on the BART path when three black males surrounded him. One of the three pointed a black handgun in Abello’s face and yelled, “Mother fucker, give me your money.” When Abello told that robber that he did not have any money, the robber hit him across the face with the handgun. Another one of the robbers held a handgun to the back of Abello’s head. The robbers then knocked Abello down, kicked and punched him, took his wristwatch, and fled. Abello described the robbers to police as black males, in their mid-to-late teens, approximately five foot, nine-inches to six feet tall, with slim builds wearing black hooded jackets or sweatshirts. The police never asked Abello to further identify the robbers. Abello could not identify them beyond his initial description because they wore their hoods pulled over their heads and bandanas around their lower faces.
It is unclear from the testimony whether this was the same handgun brandished by the first robber, or whether this was a second handgun.
Defendant was 15 years old on the date of the robbery.
Near the scene of the robbery, El Cerrito Police Officer Jeffrey Albrandt, the resource officer at El Cerrito High School, interviewed three girls on the day of the robbery and again on January 10 and 11. The girls told Albrandt that they were standing on a corner near the scene of the robbery when six or seven black, male juveniles ran by them. The girls recognized some of the boys as El Cerrito High School students. Two of the girls identified five of the boys after viewing photographs from the El Cerrito High School yearbook, the student book, and students’ pictures on the school’s computer ID card system. The five boys were: Michael W., Willis F., Jorge G., M.H. and S.H. None of the girls picked out defendant’s picture when it was displayed.
The day of the robbery, the police also contacted a boy, M.G., who had been standing with about nine other boys near the BART path about a block and a half from where the robbery occurred. M.G. told police that about five older boys came running up to him and his friends and told them, “If the cops come, we were with you guys the whole time.” M.G.’s friend, T.F., a student at Portola Junior High School, heard one of the older boys say that he needed to put a “bulky thing somewhere.” M.G. explained to the police that a “bulky thing” meant a gun.
Based on the girls’ identifications and M.G.’s statements, the police arrested Michael W., Willis F., Jorge G., and M.H. at El Cerrito High School, and arrested T.F. at Portola Junior High School. On January 10, the police interviewed each of these five boys separately. The boys who gave incriminating statements were first informed of, and waived, their rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The boy arrested at the junior high school, T.F., told police that, on the day of the robbery, the older boys came running up to him and his other friends (including M.G.). One of the older boys put a gun into the backpack of T.F.’s friend. The gun was a metal B.B. gun that was a model of a .45-caliber handgun. T.F. then took the backpack. He was supposed to return the gun to the older boy at a later date. T.F. identified one of these older boys as going by “a nickname of E something.” T.F. also told police that the gun used in the robbery was in his bedroom at home. Later that same day, T.F. and his aunt (who was at his house) gave the police permission to go into T.F.’s bedroom and retrieve the gun.
Three of the four boys arrested at El Cerrito High implicated themselves in the robbery. Willis F., who was T.F.’s older brother, admitted his “active involvement in the robbery, ” stating that he patted down the rear pockets of the victim while he was lying on the ground. He also said he took the gun that was in his brother’s backpack, put the gun in his own backpack, and took the gun home. Willis also named six other co-participants. Willis told police that “E-Mac” participated in the robbery by pulling out the gun and hitting the victim with it several times in the head.
During M.H.’s interview with the police, he said that his role in the robbery was to slow the victim down and hit him. When the police asked M.H. whether someone named “E-Mac” was involved, M.H. said that name sounded familiar. Michael W. told police that his role in the robbery was to be a “lookout, ” that “E-Mac” and others were supposed to hit the victim, that “E-Mac” had the gun during the robbery, and that after the robbery E-Mac put the gun into the backpack of a small kid from Portola Junior High. He also stated that E-Mac and M.H. “planned most of the robbery.” Jorge G. denied any involvement in the robbery and admitted only to walking nearby with Willis and another guy.
Because Officer Albrandt was the resource officer at El Cerrito High School and was familiar with the student body there, he knew that defendant’s nickname was “E-Mac.” Defendant was arrested on January 11, 2007, at school. After defendant waived his Miranda rights, he admitted his involvement in the robbery without appearing “to mitigate” his involvement, and he named his co-participants.
Defense counsel argued at the suppression hearing that the police lacked probable cause to arrest defendant because the arrest was based solely on the statements of three co-conspirators—T.F., Willis, and Michael—who were untrustworthy since they all had their own agendas. Defense counsel argued that the police should have done more investigating before arresting defendant.
The juvenile court denied the motion to suppress, finding that the police had probable cause to arrest defendant. First, the court noted that T.F. was credible because he told police a gun was used during the robbery, and then brought the police to the gun at the location where he said it would be. The court then explained that, although none of the three girls identified defendant, “T.F. mentioned something about E something. Other people then say E-Mac. Willis [F.] mentions E-Mac had the gun. [M.H.] said E-Mac sounds familiar. Michael [W.] admitted his participation and said E-Mac was involved. All of those boys’ statements are then corroborated about how the robbery was happening. So there’s again plenty of probable cause to arrest” defendant.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, ” there was probable cause for defendant’s arrest, “we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “A warrantless arrest is authorized and legal ‘[w]henever [the arresting officer] has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.’ [Citation.]” (People v. Rosales (1987) 192 Cal.App.3d 759, 765.) We apply a “totality-of-the-circumstances approach to test probable cause for an arrest.” (Id. at pp. 767-768.) Under this approach, “even in cases in which [an] informant’s motives may be doubted, ‘his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.’ ([Illinois v. Gates (1983) 462 U.S. 213, ] 234.)” (Rosales, supra, 192 Cal.App.3d at p. 767.)
Here, the juvenile court properly concluded there was probable cause to arrest defendant based on the corroborating statements made by his co-participants. Three co-participants, in independent interviews, each admitted his own involvement in the robbery, described details of the robbery which he observed firsthand and which were corroborated by statements made by other co-participants as well as by the victim, and identified defendant as a co-participant. (See People v. Green (1981) 117 Cal.App.3d 199, 205 [“corroboration of an unreliable informant’s statements may be met by those of another, if they were interviewed independently, at a different time and place”]; People v. Fein (1971) 4 Cal.3d 747, 752-753 [information given by an untested informant may be sufficient to establish probable cause to arrest “if corroborated in essential respects by other facts, sources or circumstances” and if such corroboration pertains “to defendant’s alleged criminal activity”].) Moreover, and as the juvenile court noted, T.F. not only told police about the gun that was used during the robbery, but also led them to the gun at the location where he said it would be. A fourth co-participant, M.H., when asked whether defendant was involved, told police that the name “E-Mac” sounded familiar.
The cases cited by defendant’s appointed appellate counsel are not to the contrary. In People v. Duarte, supra, 24 Cal.4th 603, the Supreme Court observed that in general, “ ‘Information received from sources who are themselves the focus of pending criminal charges of investigations is inherently suspect.’ ” (Id. at p. 617; see also People v. Kurland (1980) 28 Cal.3d 376, 393 (Kurland) [also cited by defendant’s counsel and observing that statements made by persons who “are themselves the focus of pending criminal charges or investigations” should typically be presumed to be unreliable sources “for purposes of probable cause”].) In Duarte, supra, 24 Cal.4th 603, probable cause for the defendant’s arrest was not at issue; the defendant was not arrested based on statements made by his co-participants. (Id. at p. 608.) The issue instead was whether hearsay statements made by one of the co-participants (Morris) were admissible under Evidence Code section 1230, which requires that the statements be “sufficiently reliable to warrant admission despite [their] hearsay character.” (Id. at pp. 610-611.) In Duarte, Morris’s hearsay statements were only partially corroborated by statements made by another man (Knox) who lacked first-hand knowledge of the commission of the crime at issue and whose testimony at trial was “extensively impeached.” (Id at pp. 608, 615.) Here, in contrast, statements made by at least three other co-participants, two of whom witnessed the entire robbery, corroborated each other. Moreover, unlike Knox and Morris, whose statements to police either denied any involvement in the crime (id. at pp. 608 [Knox]) or minimized it (id. at pp. 614-615 [Morris’s statements “were ‘attempts to shift blame or curry favor’ . . . with the authorities”]), T.F., Willis, and Michael each admitted involvement in the robbery.
Similarly, in People v. Schulle, supra, 51 Cal.App.3d 809, the court made the common-sense observation that “the tests of reliability that must be applied . . . to persons criminally involved . . . do not necessarily apply to every private citizen who aids the police.” (Id. at p. 815.) The issue of corroboration by co-participants is not addressed in that case. This issue is also not addressed in Kurland, supra, 28 Cal.3d 376, where the issue instead was “what rules apply when defendant charges that a warrant affidavit, though sufficient on its face, is incomplete” for failure to describe whether an informant is a “ ‘citizen informant’ ” or instead a “police tipster.” (Id. at pp. 383-384, 393-394.)
We also note that there was no error regarding defendant’s sentencing. On February 27, 2007, defendant submitted the case on the police reports. According to one of these reports, on January 11, 2007, after waiving his Miranda rights, defendant admitted his involvement in the robbery, including pointing the B.B. gun at the victim and hitting the victim three times with that gun. Defendant also admitted that the gun ended up in the backpack of Willis’s little brother, and admitted his nickname was “E-Mac.” On March 13, 2007, after reviewing defendant’s file and the probation report, the juvenile court imposed the sentence described above, noting that defendant’s offense was “violent and dangerous.” Defendant received credit for 62 actual days served. The court also imposed a restitution fine of $200.
DISPOSITION
The March 13, 2007 order is affirmed.
We concur: Kline, P.J., Haerle, J.