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People v. Algere

California Court of Appeals, First District, Second Division
Sep 17, 2009
A120719, A119853 (Cal. Ct. App. Sep. 17, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. BRANDON PAUL ALGERE et al., Defendants and Appellants. A120719, A119853 California Court of Appeal, First District, Second Division September 17, 2009

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. 050614743

Lambden, J.

Following the lower court’s denial of motions to quash and traverse a search warrant and to suppress evidence pursuant to Penal Code section 1538.5, codefendants Brandon Paul Algere and Tony Ray Nix pleaded no contest to second degree murder (§ 187) and attempted second degree robbery (§§ 211, 212.5, subd. (c), 664) and admitted personal use of a firearm in the commission of the homicide pursuant to section 12022.53. Defendants separately appealed the court’s denial of their motions to quash and traverse the search warrant and to suppress the evidence. We granted Algere’s request to consolidate the codefendants’ appeals.

All further unspecified code sections refer to the Penal Code.

On appeal, defendants mount various objections to the telephonic search warrant, including the lower court’s findings that the failure to record the application for the warrant was subject to the good faith exception, that probable cause supported the issuance of the warrant, that none of the omissions in the reconstructed affidavit was material, and that an in camera hearing to question the informant to determine the validity of the reconstructed affidavit was not necessary. We are not persuaded by defendants’ arguments.

Additionally, Algere asserts that the lower court imposed an unauthorized sentence for his conviction of attempted second degree robbery. We agree that this sentence was incorrect and remand for the limited purpose of resentencing Algere; we otherwise affirm the judgment as to Algere. The judgment as to Nix is affirmed.

BACKGROUND

The Complaint and Defendants’ Motions

A complaint filed on December 15, 2004, charged defendants with, in count 1, special circumstance murder (§§ 187, 190.2, subd. (a)(17)) and, in count 2, attempted second degree robbery (§§ 211, 212.5, subd. (c), 664). The complaint also alleged as enhancements that both defendants personally discharged a firearm, causing great bodily injury and death, during the commission of the charged offenses (§ 12022.53, subds. (b)-(d)).

The reconstructed affidavit in support of the search warrant in this case was filed under seal. On November 22, 2005, defendants moved to unseal the search warrant and to disclose the identity of the confidential informant. Following an in camera hearing, where the affiant appeared, Judge Nancy Davis Stark ruled on December 16, 2005, that defendants could receive a partially redacted version of the affidavit. Judge Stark denied the motion to disclose the identity of the confidential informant.

In October 2006, defendants separately filed motions to quash and traverse the search warrant and to suppress evidence pursuant to section 1538.5.

The Hearing on Defendants’ Motions and the Preliminary Hearing

In November 2006, the court held a hearing on defendants’ motions and ruled on them immediately prior to the commencement of the preliminary hearing.

The Crimes

At the hearing on defendants’ motions, Salah Khulaqi, who lived in a room behind the Golden 7 Food Store (Golden 7 or the store) in Richmond with his brother Ahmed Khulaqi, testified. Ahmed worked at Golden 7 as a clerk. Salah reported that he was in his room on December 12, 2004, when he heard his brother Ahmed calling for him. As Salah went to the back door of the store, Salah heard gunshots coming from the store.

Salah ran into the street and asked a passerby for his cell phone; he called Saeed Sharif, the owner or manager of the store. He handed the phone back to the bystander, who called police.

Salah testified that he believed that the store owner’s name was “something like” Saeed Sharif. Detective Jose Beltran testified that he believed Sharif was his first name.

When Sharif arrived, both he and Salah entered the store. There was a lot of blood on the floor. The pair went to the back patio and discovered Ahmed lying on the ground, motionless, with blood flowing over his face.

About 9:20 a.m., on December 12, 2004, Detectives Mark Spaulding and Jose Beltran and another deputy responded to a call at a convenience store in North Richmond. When they arrived, Salah was running from the store crying hysterically. Inside the store, the detectives saw grocery items spilled on the floor and a trail of blood that led from the store counter, down a hallway to the rear door of the store. This is where they found Ahmed. Ahmed had gunshot wounds on both sides of his head and to his chest. Ahmed was not breathing and did not have a pulse. He died as a result of five gunshot wounds.

Sharif showed Detective Beltran a security videotape of the store. The tape showed two armed men entering the store. One person was wearing a hat, dark clothing, and what appeared to be a blue bandana; the other person was wearing a black hooded sweatshirt and black pants. One of the men also had what seemed to be batting gloves. The armed men looked like they were robbing the store and the tape depicted the two men in a struggle with Ahmed. The deputies dispatched a clothing and weapon description of the two suspects viewed on the video. Beltran also seized several empty shell casings at the scene.

Detective Beltran did not see either of the two suspects on the tape carrying beer when they left the store. After the gunmen fled, the video showed a man later identified as Cordell Johnson come into the store, take an armful of merchandise out of the refrigerated section, and leave.

Alex Taflya, a deputy sheriff’s criminalist, testified that shoe prints and blood on paper bags were found at the crime scene. Nine millimeter cartridges were also recovered at the scene.

Lieutenant Stephen Warne, who was the team supervising sergeant for the homicide unit in the investigations division in December 2004, responded with his team to the store. His team included Detectives Sean Pate, Todd Santiago, Lance Santiago, and Laurie Bailey, and Sergeant Joe Gordon. The officers shared information with each other throughout the day.

Identifying Suspects Other than Defendants

Shortly before noon, an officer attempted to detain a man named Michael Price for questioning in connection with the homicide. Price took off running when the officers approached. He was caught and arrested after a two-block chase. It was later determined that Price did not have any connection with the case.

Lieutenant Warne watched the surveillance video at the field operations bureau with Sharif, but Warne could not recall the exact time of the viewing. He believed that he saw the video prior to the submission of the search warrant affidavit. Sharif did not make any positive identification from the video, but believed he recognized the gunmen from their movements. He reported being 85 percent certain that a person named Brandy or Master Boo was one of the suspects; he believed that he was the larger of the two individuals in the video. Sharif also identified Donald Reed as being involved. Sharif was 25 percent sure that Reed was involved in the robbery.

After viewing the video and returning to the store, Sharif saw Reed standing next to a person who appeared to be Boo. Reed was detained as a suspect and transported to police headquarters where he was questioned. Reed explained that he had gone to the store to buy dog food; when he arrived, there was a big crowd at the store. Reed provided no relevant information regarding the crimes at the store and the police released him.

Obtaining Information for the Search Warrant

Detective Shawn Pate prepared a search warrant on December 12, 2004. While developing his information for the search warrant, Pate testified that he was not aware of other suspects interviewed or what the surveillance videotape showed.

Prior to arriving at the murder scene at Golden 7, Detective Pate contacted one of his “confidential reliable informants who started providing” him with information. When asked to explain why this person was a confidential and reliable informant, Pate explained: “This particular informant I have been working with for several years now. That particular informant is part of the North Richmond community, the gang community to be exact. And that particular informant has the capability of contacting certain individuals in the North Richmond area and communicating with them at a social level, very in depth. I asked that informant to go to that area. He, in fact, was not out there when I contacted this person. I had the informant go there in hopes of getting information, so we could see where this investigation was going to lead us.”

While at the scene, the informant contacted Detective Pate. The informant told him that he had spoken to two different people who “were validated Project Trojans[.]” When asked to explain what a validated Project Trojan was, Pate responded: “In North Richmond, there is a predominant African-American gang referred to as the Project Trojans. Both of these people providing this information to the reliable informant are, in fact, Project Trojans.” The informant gave Pate the names of two people: Damien “Dirty Dawg” Humphreys and Dante “Windows” Moore. Pate knew that Dirty Dawg and Windows were validated members of Project Trojan and that they had been involved in murder, torture, the manufacturing of controlled substances, dissuading witnesses, making terrorist threats, and other crimes. Pate believed that the two men had been involved in the sale of narcotics, possession of firearms, and several shootings, some of which resulted in murders. Pate testified that he knew that gang members sometimes gave false information to other gang members even though they generally were very loyal to one another. He also stated that, in his personal experience, he had no reason to believe either man was a reliable source of information.

The informant stated that others, whom he did not identify, were within the immediate area and they all reported that defendants were responsible for the killing. The informant said he knew that defendants resided in the location directly behind or to the north of Golden 7. The informant revealed that Nix’s family also lived “kitty-corner” to Golden 7.

Sergeant Steven Huntington, the lead investigator, also responded to the crime scene and arrived about 11:00 a.m. Before he arrived, he had been told that there was a possible homicide in North Richmond and Detective Pate told him that he had possible suspect information and identified defendants as the suspects. He did not recall telling Pate that there were other suspects being interviewed.

Detective Pate conducted a sheriff’s records check on defendants. It confirmed that defendants had contacts with the locations provided by the informant. Pate also had been in the Nix’s residence many times.

Securing and Watching the Two Residences Near the Store

Deputy Todd Santiago assisted Detective Pate in securing the residences. Prior to serving the search warrant at one of the addresses, the police taped off the residence and no one was allowed into the residence. Pate informed Algere’s mother and Idrena Nicks––Algere’s aunt and Nix’s cousin––that the police were attempting to serve a search warrant. Algere’s mother began to cry and Nicks told her that defendants had been with her in her house. Nicks told Santiago that both defendants were at the house in the morning. She said that they woke up at 7:00 a.m. and that they were in the living room at 9:00 a.m. when Algere’s younger brother told them that the man in Golden 7 had been shot. Santiago believed that he gave this information to Pate before the search warrant was served.

The Telephonic Search Warrant

Detective Pate sat in his car, watched the two residences, and prepared a telephonic search warrant. Pate wrote all of the information down in note form. He then contacted his dispatch supervisor and had that person contact the on-call judge at the judge’s residence. Pate requested that the line stay open and that the conversation with the judge be recorded in its entirety. Dispatch called Pate and told him that Judge William Kolin was on the phone on a secured line. Judge Kolin told Pate the procedure of a telephonic search warrant.

Detective Pate testified that he provided Judge Kolin with all of the information that was contained within the search warrant. He stated that he provided the judge with a statement of his expertise, a description of the places to be searched, the items to be seized, and a statement of probable cause. Judge Kolin authorized him to sign his name on the warrant. With regard to the informant’s reliability, he told the judge that this informant had previously provided him with information regarding narcotic activity, stolen property, violence, and homicides. Pate admitted he knew about weapons and drug charges pending against the informant on the date the informant gave him the information in this case. He testified that he told the judge about the specific charges pending against the informant. He did not give the judge any information about the criminal histories of Dirty Dawg and Windows because, according to Pate, it was “not common practice for us to do such.”

A short time later, dispatch contacted Detective Pate and told him that there had been “some sort of error in the recording and that the conversation had not been recorded as requested.” Pate called Judge Kolin and advised him of the situation. Pate reported that Judge Kolin told him “to put a paragraph in the affidavit of the search warrant relating to the fact that the recording did not take place, but that it was attempted.” The judge still authorized the search warrant and told Pate to bring it to him on the next business day.

Detective Pate did not keep his handwritten notes that he had read to Judge Kolin. He testified that his practice was to destroy them once he translated them into search warrant form.

Filing the Warrant and the Reconstructed Affidavit

On December 28, 2004, Detective Pate took the duplicate original warrant and other documents to Judge Kolin for his signature. On January 19, 2005, the affidavit and search warrant, their duplicate originals, and the returns were filed with the clerk of the court. The warrant authorized the officers to search the two residences near the crime scene, which had been identified as defendants’ residences, and to search defendants. The warrant also specified property to be searched, which included firearms, ammunition, blood, black clothing that included beanies and gloves, beer, trace evidence consisting of gunshot residue and blood, photographs, and black masks.

In his reconstructed probable cause statement, Pate stated that he contacted a confidential informant with whom he had “been working with on numerous occasions for several months.” The informant, at Pate’s request, began asking local citizens about possible suspects. The informant told him that he/she had information regarding the suspects and Pate did a sheriff’s records check. The check identified defendants and showed addresses for them directly behind and directly across from the crime scene. Pate believed that the suspects could be hiding at either address. The statement included a paragraph regarding the problems with the recording of the telephonic warrant. The statement also included a sealed portion of the warrant.

In the sealed portion of the search warrant, Detective Pate stated that the informant had never provided any information found to be untrue or inaccurate. The informant had provided Pate with information on narcotic activity, stolen property, violence, and homicide. The informant told Pate that “Dirty Dawg” contacted him. Dirty Dawg disclosed to the informant that he saw defendants standing in front of the crime scene just prior to the crime and they were dressed in black. The informant also spoke to a person known as “Windows,” who reported that defendants committed the crime. Windows further stated that defendants “were stupid and only got two cases of beer.” The informant reported that “numerous subjects within the immediate area are all saying [defendants] are the responsibles for the murder.” The informant told Pate that he had known defendants for numerous years and that he believed they resided at the residence directly behind the crime scene. The informant stated that Nix’s family lived at another residence nearby. No party, according to the informant, mentioned seeing either defendant leave the area and therefore Pate believed defendants could be in one or both residences.

The Search Pursuant to the Warrant

On that same day, December 12, 2004, officers served the search warrant on the two locations. In the bedroom identified as belonging to Algere, the officers found a pair of baseball gloves that had what appeared to be blood on them; they also discovered a black beanie. In the bedroom that was identified as belonging to Nix, the officers found a couple pairs of shoes and black beanies. The sneakers seized from Nix’s bedroom matched the shoe prints found at the scene of the murder. In a back shed on one of the properties, the officers found three firearms, including a Browning 9 millimeter gun, which had one round jammed between the magazine and the barrel and eight more rounds in the magazine. They also found a Walter 9 millimeter gun, which had one round in the chamber, and a Davis Industry 380, which had one round in the chamber and five rounds in the magazine.

Interview of a Witness

Deputy Sheriff Cary Goldberg testified. He said that on December 14, 2004, he interviewed Cordell Johnson, the person seen in the videotape removing items from the refrigerated section in the store after the gunmen had fled. Johnson reported that he had been on the street of Golden 7 just prior to its opening. He spotted someone he recognized as an employee opening the store and two other individuals in front of the store shortly after it opened. Johnson recounted that he subsequently heard five gunshots. Shortly thereafter, Johnson saw the employee run out of the back of the store; the two individuals he had seen in front of the store ran out after the employee and then ran away. He described the two men as being dressed in black. Johnson viewed photographs of both defendants and identified them as the men in front of the store.

Algere’s Statements to the Police

Detective Steve Huntington received a phone call from Algere about 7:20 a.m. on December 13, 2004, the day after the killing of Ahmed. He said that his mother had asked him to call and Huntington told him there was a warrant for his arrest for the shooting at Golden 7. Algere first denied being at the store and stated that Nix told him that he had shot the clerk at the store. Subsequently, when Huntington told him that he had evidence indicating that Algere was at the scene of the shooting, Algere said he went to the store to get Nix out of trouble. He claimed that he went to the store to pull Nix out, but ran into the victim and got blood onto his glove. Later during the phone conversation, Algere admitted that he entered the store with Nix and that Nix started shooting at the store clerk. Algere declared that he ran to the back of the store and, while running, he ran into the clerk and got blood on himself.

Algere turned himself into the police later that morning and Detective Huntington interviewed him at the police station. Algere gave Huntington different stories about what had happened at the store. However, after Huntington showed him a copy of the store surveillance tape, Algere told the detective that Nix and he went to rob the store but that he did not want to hurt anybody. He admitted that he fired a gun.

The Court’s Rulings

The trial court concluded that the magistrate had a substantial basis to conclude that there was a fair probability that guns or other evidence would be found at the locations near the store. Further, the court observed that Detective Pate gave Judge Kolin the names of defendants. The court noted that Pate had run a record check on the names of defendants and received corroborating information of defendants’ addresses. The court denied defendants’ motion to quash.

With regard to defendants’ motions to traverse the search warrant and suppress evidence, the court pointed out that Detective Pate was familiar with Dirty Dawg and Windows prior to the informant’s giving him those names. The court found Pate’s failure to tell Judge Kolin that these two men were part of the Project Trojan gang was a “reckless omission.” It determined, however, that this omission added more strength to the search warrant because the court believed gang members would be more honest when speaking to other gang members than they would be when communicating with a police officer. The court concluded that the omitted information would have had no impact on the magistrate’s finding of probable cause and denied defendants’ motions to traverse and to suppress the evidence.

The court then conducted the preliminary hearing. At the end of the preliminary hearing, the court ordered both defendants to be held to answer the charges.

Information and Arraignment

On December 4, 2006, an information was filed, which charged defendants with the same offenses and enhancements charged in the complaint. On December 5, 2006, defendants were arraigned and they pled not guilty to both counts and denied the special allegation and special circumstance.

Defendants’ Motions

On October 24, 2006, defendants filed another motion to traverse and quash the search warrant and to suppress evidence. Defendants submitted declarations by Dirty Dawg and Windows; the two men denied ever speaking to anyone about defendants or about the shooting at Golden 7. The court denied these motions on November 20, 2006.

In February 2007, defendants moved again to disclose the identity of the informant. Defendants asked the court to hold an in camera hearing to permit them to examine the confidential informant to determine whether he possessed information relevant to the motion to traverse the search warrant. On May 11, 2007, the court denied defendants’ motions.

Pleas and Sentences

On August 16, 2007, pursuant to a negotiated disposition, Algere withdrew his plea of not guilty and entered a plea of no contest to violating section 187, second degree murder, and to violating sections 211, 212.5, subdivision (c), and 664, attempted second degree robbery. The court granted the prosecution’s motion to amend the information to add a firearm enhancement pursuant to section 12022.5, subdivision (a), which Algere admitted.

The court sentenced Algere to an indeterminate term of 15 years to life for his conviction of second degree murder in count 1. The court imposed a consecutive 10-year sentence for the firearm enhancement pursuant to section 12022.5 subdivision (a), as to count 1. The court sentenced Algere to a concurrent term of 18 months for his conviction of attempted second degree robbery in count 2. The total term of imprisonment was 25 years to life.

On October 9, 2007, Nix pled no contest to second degree murder and attempted robbery. He also admitted that he personally used a firearm in the commission of the homicide.

On January 17, 2008, the court sentenced Nix to an aggregate term of 25 years to life. The court sentenced him to the term of 15 years to life on count 1, to a consecutive 10-year term for the firearm use enhancement, and to a concurrent one-year term for the attempted robbery.

Appeals

Both defendants separately filed timely notices of appeal. Algere filed a motion to consolidate his appeal with that of Nix, and we granted this motion.

DISCUSSION

I. No Recording of the Telephonic Application for the Search Warrant

Detective Pate’s telephonic application for the search warrant was not recorded and defendants contend that the lack of any recording combined with other irregularities violated their right to be free of unreasonable searches and seizures and to the due process of law. They maintain that the violation of their Fourth and Fourteenth Amendment rights should result in the suppression of evidence.

A. Applicable Law

1. The California Law on Telephone Warrants and Due Process Rights

Both the Fourth Amendment of the United States Constitution and its counterpart in the California Constitution (art. I, § 13) provide that no search warrant shall issue except upon probable cause, supported by oath or affirmation. Neither requires presentation of a written affidavit or declaration as a prerequisite to the issuance of a warrant. The use of telephonic search warrant authorized by California law is constitutional (People v. Peck (1974) 38 Cal.App.3d 993, 999-1000). Compliance with the requisites of the statute must be adhered to in order to insure adequate judicial supervision and control to preserve the constitutional guarantees. (Id. at p. 1000). Technical defects in the procedure, however, do not invalidate the search. (Sternberg v. Superior Court (1974) 41 Cal.App.3d 281, 291-292.)

Section 1526 authorizes the issuance of the search warrant on oral statements. It provides in pertinent part as follows: “(a) The magistrate, before issuing the warrant, may examine on oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the party or parties making them. [¶] (b) In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath under one of the following conditions: [¶] (1) The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter. In these cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the clerk of the court. In the alternative in these cases, the sworn oral statement shall be recorded by a certified court reporter and the transcript of the statement shall be certified by the reporter, after which the magistrate receiving it shall certify the transcript which shall be filed with the clerk of the court.”

The certification process employed by section 1526, subdivision (b), ensures an accurate transcription of the oral statement be made. (People v. Meza (1984) 162 Cal.App.3d 25, 35.) “Regarding the constitutional due process rights of defendant, the certification requirement has a twofold purpose: to provide (1) defendant with an accurate transcription of the oral statement so appropriate challenges to its legal sufficiency might be made and (2) the reviewing court with an accurate record of the factual information considered by the magistrate in making the probable cause determination, without which meaningful review would be foreclosed.” (Id. at p. 35.)

If satisfied that grounds for the warrant application exist, “[t]he magistrate may orally authorize a peace officer to sign the magistrate’s name on a duplicate original warrant. A duplicate original warrant shall be deemed to be a search warrant for the purposes of this chapter.... The magistrate shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant and the duplicate original warrant with the clerk of the court....” (§ 1528, subd. (b).) “(a) A search warrant shall be executed and returned within 10 days after date of issuance.... [¶] (b) If a duplicate original search warrant has been executed, the peace officer who executed the warrant shall enter the exact time of its execution on its face.” (§ 1534, subds. (a) & (b).) “The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken....” (§ 1537.) A magistrate’s failure to certify promptly the transcript of a sworn oral statement taken by him or her, which in turn constituted the affidavit in support of the issuance of a search warrant, would become grounds for granting a suppression motion only if the late certification violated federal or state constitutional standards. (See People v. Meza, supra, 162 Cal.App.3d at p. 35.)

2. The Good Faith Exception

The California Constitution permits “ ‘exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution.’ ” (People v. Fortune (1988) 197 Cal.App.3d 941, 948-949 (Fortune).) Moreover, evidence need not be suppressed if the “good faith” exception to the exclusionary rule as articulated in United States v. Leon (1984) 468 U.S. 897 (Leon)applies. (Fortune, supra, at p. 953.) Under this rule, relevant evidence does not need to be excluded when the evidence has been seized pursuant to a warrant issued by a detached and neutral magistrate and when the officer executing the warrant and conducting the search acted in an objectively reasonable belief in the validity of the warrant. (Leon, supra, at pp. 907-908.)

“ ‘[T]he essential prerequisite to the reasonable good faith exception’ [i]s a finding that ‘the officers had a good faith objectively reasonable belief that the search they conducted was authorized by a valid warrant [and]... “that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant.” [Citation.]’ ” (Fortune, supra, 197 Cal.App.3d at p. 950.) “The question to be addressed is whether a reasonably well-trained officer in the officer’s position would have known that his affidavit failed to establish probable cause....” (People v. Lim (2000) 85 Cal.App.4th 1289, 1296-1297.)

The state has the burden of establishing “objectively reasonable” reliance upon the warrant. Leon set forth four exceptions in which suppression remains “an appropriate remedy: (i) the issuing magistrate was misled by information that the officer knew or should have known was false; (ii) the magistrate ‘wholly abandoned his judicial role’; (iii) the affidavit was ‘ “so lacking in indicia of probable cause” ’ that it would be ‘ “entirely unreasonable”’ for an officer to believe such cause existed; and (iv) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid. [Leon, supra, 468 U.S. 897, 923.]” (People v. Camarella (1991) 54 Cal.3d 592, 596.) Thus, “[i]f the officer ‘reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause,’ the seized evidence need not be suppressed. [Citations.]” (People v. Pressey (2002) 102 Cal.App.4th 1178, 1191.)

The court in Fortune, supra, 197 Cal.App.3d 941, considered the application of the good faith exception to a situation where the oral affidavit made in support of a telephonic search warrant had not been recorded and transcribed as required by statute. In Fortune, the state appealed after the lower court granted defendant’s motion to traverse the search warrant; the Fifth District reversed the lower court’s judgment. (Id. at pp. 945-946.) The detective in Fortune testified that he telephoned the judge for issuance of a telephonic search warrant, relying upon several pages of his field notes prepared two days earlier. (Ibid.) Prior to calling the judge, the detective had tested his recording equipment and found it to be working correctly. (Ibid.) After the detective was sworn, he recited to the judge the facts reflected in his handwritten field notes and the judge authorized the detective to sign the judge’s name and execute the warrant. (Ibid.) The detective placed the tape into a locked file, but nine days later he learned that, except for the first two to three minutes of the tape, the recording was inaudible and could not be transcribed. (Ibid.) Using the same field notes, the detective reconstructed a statement of the facts he had recited under oath to the judge on the telephone and submitted it to the judge for certification. (Ibid.) The judge certified the reconstructed affidavit. (Id. at p. 946.)

When considering whether the evidence needed to be excluded due to the failure to meet the statutory requirements for a telephonic search warrant, the Fifth District in Fortune looked for guidance to federal decisions. (Fortune, supra, 197 Cal.App.3d at p. 949.) The Fortune court observed that federal courts “have not found it necessary to order suppression of evidence seized pursuant to a search warrant when a verbatim transcript of the affidavit is unavailable because of technical noncompliance with the rule.” (Ibid., citing United States v. Stefanson (9th Cir. 1981) 648 F.2d 1231 and United States v. Allen (N.D.Ill. 1984) 586 F.Supp. 825.) In Stefanson, supra, 1231, the magistrate supplemented the probable cause statement from the magistrate’s memory because the recording with the affiant officer was in part inaudible due to problems with the recording device. (Id. at pp. 1234-1236.) The Stefanson court held that the defendant had not established that he suffered any prejudice from this irregularity. (Ibid.) Similarly, in United States v. Allen, supra, 586 F.Supp. 825, the court refused to exclude evidence because the defendant failed to establish he was prejudiced by the unavailability of a verbatim transcript of the affidavit when the tapes with the affiant were blank. (Id. at pp. 828-829.)

The Fortune court concluded that the lower court in the case before it failed to apply federal precedent when it excluded evidence based on a technical irregularity without a showing of prejudice; the court emphasized that the trial court also erred in failing to consider the good faith exception under Leon, supra, 468 U.S. 897. (Fortune, supra, 197 Cal.App.3d at pp. 949, 951, 953.) In determining that the trial court should not have excluded the evidence, the Fortune court observed that the defendant had not challenged the probable cause underlying issuance of the warrant and the defendant had not asserted that the deputy had willfully or negligently violated the provisions of section 1526, subdivision (b). Additionally, the defendant had not contested the accuracy of the detective’s reconstruction. (Fortune, supra, at pp. 949, 951, 953.) Thus, “[t]he reconstructed affidavit in [Fortune] did provide an adequate record from which either a trial court or a reviewing court could have gauged a challenge to the existence of probable cause, had any such challenge been made.” (Id. at pp. 952-953.)

Even in those cases where a defendant contests the sufficiency of probable cause established by the affidavit, the Fortune court emphasized that “the best result a defendant could hope for in challenging the sufficiency of the affidavit is that it would be found lacking and the search warrant would fall. However, in such a case, the ‘good faith’ exception... could still salvage the admissibility of the evidence seized. We can conceive of no reason why a defendant should be better off when a technical defect, apparently totally beyond the control of the officer, prevents the tape recording of the oral affidavit as required by statute than that same defendant would be if he were successful in showing the affidavit was insufficient to establish probable cause.” (Fortune, supra, 197 Cal.App.3d at p. 953.)

B. Applying the Law to the Facts of this Case

Here, like the situation in Fortune, it was “objectively reasonable” (People v. Lim, supra, 85 Cal.App.4th at pp. 1296-1297) for Detective Pate to rely on the search warrant. Pate telephoned Judge Kolin to provide an oral affidavit pursuant to section 1526 in support of the search warrant. A phone line was dedicated to this telephonic search warrant affidavit and Pate recited the probable cause from his notes. Shortly after talking to the judge, dispatch informed Pate that there had been an error in the recording and that the conversation with the judge had not been recorded. Pate called Judge Kolin and the judge told him to put a paragraph in the affidavit of the search warrant related to the fact that the recording did not take place, but was attempted. Judge Kolin authorized the search warrant and told Pate to bring it to him on Pate’s next business day. Subsequently, Pate brought the written warrant to Judge Kolin and he signed it.

Defendants argue that the facts of the present case differ significantly from those in Fortune and from those in the federal cases cited in Fortune because Detective Pate knew about the problem with the recording prior to executing the warrant. The officer in Fortune did not learn about the problem with the recording until nine days after the warrant had been executed. (Fortune, supra, 197 Cal.App.3d at p. 945.)

Defendants ignore that the critical question presented by the failure to record the affidavit in support of the search warrant is not when Detective Pate learned about the problem, but whether he acted in good faith when executing the warrant. The record contains no facts suggesting that Pate was responsible for this technical noncompliance with the telephonic search warrant requirements or that he delayed in disclosing the problem to the magistrate. Rather, as soon as Pate learned that there was a problem with the recording and that his affidavit was not recorded, he alerted the judge about the problem. The judge told Pate to put a paragraph in his affidavit, which he did, setting forth the problem with the recording; the judge still authorized the search. Defendants fail to refute the state’s evidence that it was objectively reasonable for Pate to rely on the judge’s authorization of the warrant after the judge learned about the recording problem. We conclude that in a situation like the present one––where the officer did not ignore the problem and relied on the judge’s instructions on how to address the issue––evidence should not be suppressed based on technical noncompliance with the requirements for a telephonic search warrant.

Defendants enumerate other problems with the telephonic search warrant, which they claim should result in the suppression of evidence discovered pursuant to the warrant. They stress that, despite knowing about the problem with the recording, Detective Pate did not keep his field notes; nor did he ask the issuing magistrate to certify the reconstructed probable cause statement. They claim that there is no evidence in the record that Pate was under oath when he made his oral statement and he did not testify that he was under oath during the telephone call with Judge Kolin. They allege that Pate did not sign the duplicate original affidavit or any version of the probable cause statement appearing in the record. Other problems with the warrant were, according to defendants, Pate’s failure to write the time of the warrant’s execution on the face of the duplicate original warrant and his failure to return the warrant within the mandatory 10-day limit. They also claim that there was evidence that the “affidavit may have been tampered with between the time the warrant was issued and the time it was returned” because the reconstructed probable cause statement provided only that the suspects were dressed in black whereas the search warrant affidavit specified beanies and a mask. Finally, they claim that, contrary to Fortune, they are arguing that the warrant was unsupported by probable cause and that Pate omitted critical facts.

Counsel for defendants never asked Detective Pate whether he was under oath when he made his oral probable cause statement on the telephone.

None of the foregoing issues require a determination that the lower court erred in finding that the good faith exception applies. As for defendants’ charge that Detective Pate should not have destroyed his notes, there is no evidence in the record that he destroyed his notes after he learned about the problem with the recording. Pate stated that he learned that the conversation with the judge had not been recorded “shortly after” the judge authorized the search warrant. When later asked whether the handwritten notes that he read to the judge over the phone still existed, he responded: “Once I translate them into search warrant form, I destroy all my notes. I make a practice of that.” Thus, a reasonable inference is that he destroyed the notes immediately after reading them to the judge and prior to learning about the problem with the recording.

The other technical problems with the affidavit set forth by defendants also do not require the remedy of suppressing the evidence found pursuant to the search warrant. Detective Pate’s failure to place the time of the warrant on the duplicate warrant and his failure to return the warrant within 10 days do not establish that Pate did not act in good faith in relying on the authorized warrant. A late return does not necessarily invalidate a warrant. (People v. Head (1994) 30 Cal.App.4th 954 [return requirements are ministerial in nature and not violations of the Fourth Amendment].) Defendants do not suggest that the return of the warrant after 16 days or the failure to place the time on the warrant prejudiced them; nor do they present any evidence that these actions were intentional violations of the statute.

Defendants also complain that there is no evidence in the record that Detective Pate was under oath when he made his oral statement to the judge and that he did not sign the duplicate original affidavit or any version of the probable cause statement appearing in the record. The record, however, contains an affidavit signed by Pate and filed on January 19, 2005. The affidavit he signed provides the following: “On the basis of his personal knowledge and on the basis of other information contained in the attachments hereto, Detective Shawn Pate” “being duly sworn....” Moreover, the signed affidavit states that the affiant certifies or declares “under penalty of perjury... that the information in this Affidavit is true and correct[.]” Additionally, the judge signed the affidavit under the statement that the affiant had been “subscribed and sworn to before me.” Thus, any technical deficiencies or irregularities set forth by defendants were merely ministerial inadvertence that did not affect the warrant’s validity. (See People v. Meza, supra, 162 Cal.App.3d at pp. 36-37) Moreover, even if there were technical irregularities rendering the warrant facially deficient, the evidence was still admissible under the “good faith” exception to the exclusionary rule. (Leon, supra, 468 U.S. 897.)

Defendants also correctly distinguish the facts of the present case from those in Fortune by pointing out that the defendant in Fortune, unlike the present case, did not challenge the probable cause underlying the warrant. The Fortune court, however, did not hold that the result would have been different simply because a defendant contested the finding of probable cause. To the contrary, the Fortune court noted that a defendant could still mount a challenge to probable cause and such a challenge would also be subject to the good faith exception. (Fortune, supra, 197 Cal.App.3d at p. 952.)

Defendants contend that, if the good faith exception applies in the present case, it would result in courts always deferring to an officer’s ex parte reconstruction of an oral probable cause statement and would eliminate an independent review by the courts of the question of whether the warrant issued was in fact based upon probable cause and supported by affirmation. We disagree. Firstly, in the present case the magistrate signed the warrant and therefore agreed that the reconstructed probable cause statement accurately reflected the oral statement made on the telephone. Secondly, defendants still may––and do––appeal the finding that probable cause supported the warrant and this court can review Detective Pate’s reconstructed statement and defendants’ claims of its inadequacies and/or inconsistencies. Thirdly, in arguing that the record is inadequate to afford defendants’ meaningful appellate review because the affidavit was not recorded, defendants cite Charney v. Superior Court (1972) 27 Cal.App.3d 888. Charney was decided prior to the decisions in Fortune and Leon, and the court in Charney did not consider the good faith exception. Indeed, when reversing the lower court in Fortune, the Fifth District criticized the lower court for relying on Charney rather than on controlling federal authority. (Fortune, supra, 197 Cal.App.3d at pp. 951-953.)

Accordingly, we conclude that the exclusion of evidence is not constitutionally compelled for technical noncompliance with the requirements for a telephonic search because: (1) the reconstructed affidavit does not prevent defendants from fully litigating the propriety of the search warrant and (2) Detective Pate’s reliance on the magistrate’s issuance of the warrant after telling the magistrate that the affidavit had not been recorded was objectively reasonable. We therefore hold that the good faith exception to the exclusionary rule applies in the present case.

II. Probable Cause

Defendants contend that probable cause did not support the search warrant. The lower court twice reviewed the magistrate’s decision and two different judges determined that probable cause supported the warrant. For the reasons explained below, we agree.

A. Standard of Review

A search warrant cannot be issued except upon a finding of probable cause within the meaning of the Fourth Amendment of the United States Constitution. The question whether the search was unreasonable is a question of law. (People v. Lawler (1973) 9 Cal.3d 156, 160, superseded by statute on other grounds.) The reviewing court must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.) Under California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) The affidavit in support of a search warrant is presumed to be valid. (Franks v. Delaware (1978) 438 U.S. 154, 171 (Franks); People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316.)

“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] ‘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.’ [Citation.] In a pre-Proposition 8 case, we stated: ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant,... [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)

The existence of probable cause for issuing a search warrant is measured by a “totality-of-the-circumstances approach.” (Illinois v. Gates (1983) 462 U.S. 213, 230 (Gates).) “[P]robable cause is a fluid concept––turning on the assessment of probabilities in particular factual contexts––not readily, or even usefully, reduced to a neat set of legal rules.” (Id. at p. 232.) The level of proof required to establish probable cause in the issuance of a warrant is far different from the proof required in formal trials: “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ [Citations.]” (Id. at p. 235.) The magistrate’s determination of probable cause is entitled to deferential review. (Id. at p. 236.) “Doubtful or marginal cases are resolved in favor of upholding the warrant.” (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)

B. Informants

When, as in the present case, the information is provided by an informant rather than a disinterested citizen, the informant must “be viewed with extreme caution.” (People v. Kurland (1980) 28 Cal.3d 376, 392.) Corroboration of information supplied by an untested informant is essential and “[t]he purpose served by corroboration is ‘to establish that the information provided by the informant did not constitute a made-up story, one fabricated out of whole cloth. Corroboration of part of the information provided by the informant [gives] credibility to the remainder of the information.’ [Citation.] It is sufficient that an informant’s statements are corroborated in a number of key respects, and a piecemeal approach is not required.” (People v. Rochen (1988) 203 Cal.App.3d 684, 689.) The fact that an informant has been shown to be reliable in the past is, in itself, a form of corroboration. “ ‘An informant’s veracity or trustworthiness may be established in a number of ways. If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions.’ ” (People v. Terrones (1989) 212 Cal.App.3d 139, 146-147.)

“While an informant’s veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report, these elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case, but understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place.” (People v. Terrones, supra, 212 Cal.App.3d at p. 146.) “[T]he reliability of an informant is now just one factor to consider in assessing probable cause....” (People v. Mayer (1987) 188 Cal.App.3d 1101, 1116.)

C. Applying the Law to the Facts of this Case

Detective Pate’s probable cause statement was based primarily on facts provided by the informant, and the informant garnered the information from other witnesses. Thus, the probable cause statement contained double hearsay. A search warrant application may be based upon double hearsay, or hearsay upon hearsay, when the police officer applying for the warrant has a substantial basis for crediting each level of hearsay or establishing veracity with respect to each person in the chain of hearsay. The Court of Appeal in People v. Love (1985) 168 Cal.App.3d 104, explained: “Gates ... did not abandon the fundamental rule that if hearsay declarations are used to establish probable cause, the affidavit must provide a ‘substantial basis’ for crediting the hearsay declarations. [Citations.] A chain is only as strong as its weakest link, so a ‘substantial basis’ for crediting the hearsay statements must be provided for each level of hearsay, i.e., at the secondary source level as well as the primary source level. As explained by Professor La Fave, ‘in the hearsay-upon-hearsay situation, as where an informant of established reliability tells police what someone else has told him, there is a need to establish veracity with respect to each person in the hearsay chain.’ ” (Id. at pp. 109-110, citing La Fave, Search and Seizure, A Treatise on the Fourth Amendment (1978) § 3.3, p. 530.) Double level hearsay can be shown to be credible or of a substantial basis when the warrant affidavit contains “ ‘ “some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable.” ’ ” (People v. Magana (1979) 95 Cal.App.3d 453, 462.)

In the present case, Detective Pate contacted his informant, with whom he had “been working with on numerous occasions for several months.” In the sealed portion of the probable cause statement, Pate declared that the informant had never provided him with any information “found to be untrue or inaccurate.” The informant had provided him with information on narcotic activity, stolen property, and homicide. The informant’s prior history of giving Pate information provided sufficient corroboration of his reliability. (People v. Terrones, supra, 212 Cal.App.3d at p. 146; see also People v. Hansborough (1988) 199 Cal.App.3d 579, 584.)

The informant then provided information from Dirty Dawg and Windows that indicated defendants had committed the crimes at the store. Consequently, the question before us is whether there was sufficient corroboration of the informant’s sources.

“[O]ne ‘unreliable’ informer’s statements may be corroborated by those of another, if they were interviewed independently, at a different time and place. [Citations.]” (People v. Balassy (1973) 30 Cal.App.3d 614, 621; accord, People v. Green (1981) 117 Cal.App.3d 199, 205.) “[I]t may not be said as a matter of law, that two or more independent reports of previously untested informers each corroborating the other, of the same criminal activity, do not constitute probable cause for an arrest or search.... [S]imilar information from separate unrelated sources substantially increases the probability of its credibility.” (People v. Sheridan (1969) 2 Cal.App.3d 483, 489.)

Here, both Dirty Dawg and Windows separately stated that defendants committed the crimes. The fact that these witnesses independently identified the names of defendants as being the persons who committed the murders and this information was gathered almost immediately after the crimes were committed in the same location of the crimes, provided sufficient corroboration of these witnesses’ reliability. Moreover, the informant knew defendants and identified their residences near the crime scene. Detective Pate did a record check that independently verified that these addresses belonged to defendants. Additionally, the informant stated that “numerous subjects within the immediate area” were saying that defendants were responsible for the murder. The informant obtained the information soon after the crime and very close to the location of the crime; this very fresh information was more reliable. (See People v. Gibson (2001) 90 Cal.App.4th 371, 380.) We therefore conclude that the statements of the informant and of the witnesses that talked to him were sufficiently corroborated to justify a conclusion of reliability when those statements are evaluated under the totality of the circumstances. (People v. Bruekner (1990) 223 Cal.App.3d 1500, 1504.)

In arguing there was insufficient corroboration, Algere criticizes the lower court’s ruling on May 11, 2007, for finding corroboration of the tipsters partially on the basis that the informant knew them by their names and monikers and had known them for years, which indicated an intimacy and reliability between them. Algere points out that Detective Pate’s probable cause statement did not specify that the informant had known Dirty Dawg and Windows for years. Although the affidavit makes it clear that the informant referred to the two men by their monikers, the probable cause statement is silent regarding the length of time the informant had known these two men. We note that the fact that the informant knew the two men by their monikers indicated that he had some familiarity with them and knew who they were. In any event, this statement by the lower court is inconsequential because, as discussed above, there was other, stronger corroborating evidence such as other witnesses’ statements, the fact that the statements were fresh and near the crime, and the fact that Windows and Dirty Dawg both related that defendants committed the crimes.

Defendants mount a number of other challenges to the finding of corroboration. They contend there was no corroboration by two independent witnesses because the probable cause statement by Detective Pate does not specify that the informant spoke separately to Dirty Dawg and Windows. They maintain that the opinions of these two men that defendants committed the offenses were conclusory and not based on any facts and therefore not entitled to any weight. (Halpin v. Superior Court (1972) 6 Cal.3d 885, 892.) They also assert that we should give no weight to Dirty Dawg’s comments that he saw defendants in front of the store or that defendants were wearing black because the police did not know anything about the clothing of the suspects. Such a tip, they maintain, did not show that the tipsters had knowledge of concealed criminal activity. (Florida v. J.L. (2000) 529 U.S. 266, 272 [information upon which police relied was from a completely anonymous phone call].) Further, since defendants lived near Golden 7, defendants claim there was nothing suspicious about their being in front of the store, but was innocuous conduct. (See People v. Conway (1994) 25 Cal.App.4th 385, 390.) Other than corroborating that defendants lived nearby, defendants contend that Pate provided no corroboration. (See Bailey v. Superior Court (1992) 11 Cal.App.4th 1107.) Finally, they assert that none of the tips provided any predictive information about future events that showed a detailed knowledge of defendants’ intimate affairs. (Florida, supra, at p. 272.)

In the present case, the informant knew the monikers of the witnesses giving him information; thus, the people providing information to the informant were not completely anonymous as were the tipsters in Florida v. J.L., supra, 529 U.S. at page 272. Further, we disagree with defendants’ assertion that the record did not support a finding that Windows and Dirty Dawg provided their accounts independent of each other. It is true that Detective Pate does not actually state in his reconstructed affidavit that the informant’s conversations with Dirty Dawg and Windows were independent of each other. However, Pate detailed that Dirty Dawg contacted the informant and told him that he spotted defendants, dressed in black, sitting in front of the store just before the robbery and that Dirty Dawg believed defendants committed the crime. The probable cause statement provided that the informant talked to a second person known as Windows. Windows also commented that he believed defendants committed the crime and that they were “stupid” for getting only two cases of beer. The informant did not tell Pate that Windows agreed with Dirty Dawg; the informant made no comments suggesting that either Windows or Dirty Dawg heard or knew what the other had said. Thus, a reasonable inference is that the informant obtained the information from each witness separately. We therefore agree with the lower court that “it does appear that the confidential informant got information at different times from the two and not that they were together.” A reasonable inference from the probable cause statement was that the informant talked to them separately and therefore Dirty Dawg’s statements that he observed defendants dressed in black in front of the store just before the crimes occurred were corroborated by the comments made by Windows.

We also disagree with defendants that Dirty Dawg’s statement that he saw defendants in front of the store was meaningless. Placing defendants in front of the store just before the crimes took place may have an innocent explanation, but “[e]ven observations of seemingly innocent activity provide sufficient corroboration if the anonymous tip casts the activity in a suspicious light.” (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved on other grounds in People v. Camarella, supra, 54 Cal.3d at p. 606, fn. 6; see also People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264.) When considering the totality of the circumstances, we do not agree that wearing black clothes and standing in front of the store immediately before an attempted robbery and homicide occur within the store is innocuous information. Moreover, Dirty Dawg did not simply report that others saw defendants, but specified that the basis for this information was his own observations. The fact that Dirty Dawg noticed details about defendants’ appearance strengthened the reliability of his statements.

Not only was there sufficient corroboration of the tipsters’ reliability, but there was probable cause to believe defendants or evidence was in the residences identified by the informant. These residences were near the scene of the crime and no one had seen the suspects leave the area. Detective Pate stated that, in his experience, many shooting suspects seek immediate shelter. “A number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect’s residence is a logical place to look for specific incriminating items.” (People v. Miller (1978) 85 Cal.App.3d 194, 204.) “The connection between the items to be seized and the place to be searched need not rest on direct observation. It may be inferred from the type of crime involved, the nature of the item, and the normal inferences as to where a criminal might likely hide incriminating evidence.” (Id. at p.201.)

Pursuant to the totality of the circumstances test enunciated in Gates, supra, 462 U.S. 213, we conclude that the reconstructed probable cause statement contained a “fair probability” that evidence of a crime or defendants would be found in the two residences near the convenience store.

We need not address the state’s contention that, even if probable cause were not established, the good faith exception applies.

III. Omissions in the Reconstructed Affidavit

Defendants argue that the trial court erred in denying their motions to quash and traverse the search warrant and that evidence found pursuant to the search warrant should be suppressed. Detective Pate, according to defendants, purposefully or recklessly omitted statements, such as the gang affiliation of Dirty Dawg and Windows, when he applied for the warrant. They maintain that these omissions were material. If these omissions were added to the probable cause statement, the affidavit, according to defendants, would have been insufficient to justify a finding of probable cause to support issuance of the warrant.

A. Standard of Review

In Franks, supra, 438 U.S. at pages 155-156, “the United States Supreme Court held that 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.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297.)

Courts have applied the Franks rule to omissions. However, omissions and misstatements differ significantly from each other as “[e]very falsehood makes an affidavit inaccurate, but not all omissions do so.” (People v. Kurland, supra, 28 Cal.3d at p. 384.) Intentional omissions, unlike the intentional misstatements of facts, are not necessarily an effort to mislead the magistrate, but may be the result of a belief that the facts are irrelevant or privileged. (Id. at p. 386.) Only “material” facts have to be disclosed and facts are material if their “omission would make the affidavit substantially misleading. On review under section 1538.5, facts must be deemed material for this purpose if, because of their inherent probative force, there is a substantial possibility they would have altered a reasonable magistrate’s probable cause determination.” (Id. at p. 385.)

“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. (See People v. Luttenberger (1990) 50 Cal.3d 1, 14-15 & fn. 4....) ‘Pursuant to [California Constitution, article I,] section 28[, subdivision] (d), materiality is evaluated by the test of [Gates, supra, 462 U.S. 213], which looks to the totality of the circumstances in determining whether a warrant affidavit establishes good cause for a search. [Citation.]’ (People v. Luttenberger, supra, 50 Cal.3d [at p. 23].” (People v. Bradford, supra, 15 Cal.4th at p. 1297.)

B. Omitting the Criminal History and Gang Membership of Dirty Dawg and Windows

Detective Pate did not disclose in his probable cause statement that Dirty Dawg and Windows had a criminal history and gang membership even though he testified that he knew about their history and gang membership. Pate admitted knowing that both of these men had been involved in the sale of narcotics, possession of firearms, and several shootings, some of which resulted in murders. These crimes involve moral turpitude (see e.g., People v. Castro (1985) 38 Cal.3d 301, 317), and defendants argue that these were material reckless omissions.

1. The Trial Court’s Ruling on Defendants’ Motions in November 2006

In November 2006, after holding a hearing on defendants’ motions to quash and traverse the search warrant and suppress the evidence, the trial court found the following: “I believe because Detective Pate testified before he ever got to the crime scene, he knew who Dirty Dawg and Windows were, I mean, even before their names came up in this investigation he knew who they were and he therefore knew they were part of the Project Trojan gang, and I believe his failure to mention that to Judge Kolin was an omission, and probably a reckless omission.”

The trial court, however, did not consider Detective Pate’s failure to mention the gang affiliation and criminal history of Dirty Dawg and Windows as a material omission. The court explained: “Well, this is one of those things that I think is a little bit peculiar and it’s kind of like a Mafia case where you have to say, if two Project Trojan gang members are speaking to each other or speaking to another person who is a member of the gang, as namely of the CRIB, yeah, they [would] tell the truth to each other; if they were speaking to the police, absolutely not. Not at all. And we know that [Dirty Dawg] was murdered August 4th, 2006, four months after the defense asked him to sign a declaration saying he didn’t know anything about this. [¶] Now we cannot say he was murdered because people found out he must have talked to the police, which is a wrong assumption. He did not talk to the police, but we also cannot ignore how serious and dangerous it is for a member of Project Trojan to actually talk to the police. [¶] So I believe when you add in this reckless omission it even adds more strength to the search warrant, because I think gang members are honest with gang members but they are not honest with––in other words, it only helps and does not hurt with regard to the leading of the search warrant.”

The court continued: “I also think if a magistrate faced with the name of two guys named Dirty Dawg and Windows might think immediately they were not being upstanding citizens in the first place because it’s not a normal name. That is one I thought was a reckless omission, and not because––didn’t tell, but Detective Pate knew all along the names and these members....”

2. The Trial Court’s Ruling on Defendants’ Renewed Motion in May 2007

Defendants renewed their motions to traverse the warrant on May 11, 2007. As to the information about Dirty Dawg and Windows that Detective Pate omitted, the court reasoned: “As to the criminal history and gang membership of Dirty Dawg and Windows, Judge Stark did find it was reckless to omit that and added it. And I’m not going to second guess that determination but defer to it. But she found that the information did not make the affidavit supporting probable cause materially misleading and would not have changed the magistrate’s issuance of the warrant even if he had known. And I think that I must agree with that analysis.

“The magistrate clearly was on notice that these sources were not necessarily people who are fine, upstanding citizens. People who go by monikers such as Dirty [Dawg] and Windows, and especially in this neighborhood in Richmond, it may have already suggested to Judge Kolin that there may be gang affiliation.

“But even apart from this, these are people who did not know they were giving information to police. And so I think that there is the expression that there is honor among thieves. And I think in this setting––I think Judge Kolin, had he been presented with the information that these sources were people with serious criminal history and gang affiliation, would not necessarily have found that in this setting that would have undermined their credibility had they believed they were giving information to the police. It might have undermined their credibility because they might have had all kinds of motives to tell the police all kinds of things and not cooperate given their histories. But in a setting where the confidential informant and the sources were all allegedly gang members, I think judge Kolin may well have concluded, as Judge Stark did and probably would have concluded, that if they thought they were all talking among themselves within the gang, there probably was more credibility to that rather than less.

“And again, the independent corroboration of the two different stories and the proximity in time is sufficient for reliability even if the source of the information were gang affiliated and had all kinds of criminal history. So I think that even had that been added, as Judge Stark concluded, Judge Kolin still would have signed this warrant and found probable cause and signed the warrant.”

3. Applying the Law to the Omission Regarding Dirty Dawg and Windows

As already noted, the lower court found that Detective Pate was reckless in omitting the criminal history and gang affiliation of Dirty Dawg and Windows in his affidavit. However, even if recklessly omitted, such omissions would violate defendants’ Fourth and Fourteenth Amendment rights only if these omissions were material to the determination of probable cause. (See People v. Bradford, supra, 15 Cal.4th at p. 1297.)

When looking at all of the facts disclosed to Judge Kolin, it appears that Detective Pate’s reconstructed affidavit provided sufficient information to indicate that Dirty Dawg and Windows were gang members and had some connection to crime. The affidavit used their monikers and these names suggest gang membership. Additionally, the affidavit stated that Windows remarked that defendants were “stupid” because they only got two cases of beer. Windows’s focus on what defendants took away from the store, rather than on the killing of the store clerk, suggested that he was not an upstanding citizen.

Not only did the facts in the affidavit indicate that Windows and Dirty Dawg had criminal backgrounds, our Supreme Court in People v. Kurland, supra, 28 Cal.3d 376 explained that omitting the criminal history of informants is not a material omission. The court stated: “All familiar with law enforcement know that the tips they [police informers] provide may reflect their vulnerability to police pressure or may involve revenge, braggadocio, self-exculpation, or the hope of compensation. [Citations.] The details of their criminal pasts are not necessary to place the magistrate on notice of their potential unreliability. [Citation.] [¶] Both an issuing magistrate and a reviewing court must initially assume that information from such sources is unreliable for purposes of probable cause. Such a rule alerts the magistrate to the very danger defendant urges––that the statements of tipsters from ‘criminal society’ may receive unwarranted weight. [¶] We therefore conclude that, in most cases, the issue of possible unreliability is adequately presented to the magistrate when the affidavit reveals that the affiant’s source of information is not a ‘citizen-informant’ but a garden-variety police tipster. In such circumstances, predictable details of the informer’s criminal past will usually be cumulative and therefore immaterial.” (Id. at pp. 393-394; see also People v. Mayer, supra, 188 Cal.App.3d at pp. 1121-1122 [omission of tipster’s criminal record was not material]; People v. Gallo (1981) 127 Cal.App.3d 828, 840-841 [same].)

Rather than address the holding of our Supreme Court in People v. Kurland, supra, 28 Cal.3d at pages 393-394, defendants rely on People v. Cobb (1983) 146 Cal.App.3d 290. In Cobb, the police affidavit in support of the warrant omitted the informant’s prior felony convictions and current probationary status. (Id. at p. 293.) It also left out that the informant had a motivation to assist the police, which was to help a friend obtain leniency in connection with another narcotics prosecution. (Ibid.) In contrast to Cobb, here, the omitted information did not relate to the informants’ motivation for giving the information. Detective Pate did not omit any information related to the reasons for Windows and Dirty Dawg to tell the informant that defendants had committed the crimes. Thus, Cobb is inapplicable to the present case.

Defendants also criticize the lower court’s rulings to the extent the two judges stated that Dirty Dawg and Windows would be more honest with the informant. Algere points out that there is no evidence that the informant was a member of the gang and Nix argues that the supposition that there is “honor among thieves” is inaccurate. The affidavit did not indicate that the informant was a gang member, but Detective Pate did testify that the informant “is part of the North Richmond community, the gang community to be exact. And that particular informant has the capability of contacting certain individuals in the North Richmond area and communicating with them at a social level, very in depth....” Further, even if we discount any assertion that the informant was a gang member, for the reasons already discussed, failing to disclose the criminal history and gang affiliations of Dirty Dawg and Windows was not a material omission.

Accordingly, we conclude there is no reasonable probability that adding details of the criminal background and gang affiliation of Dirty Dawg and Windows to the affidavit would have altered a reasonable magistrate’s probable cause determination.

C. Omitting Information Related to Other Suspects

Detective Pate did not tell the magistrate about suspects other than defendants. In particular, he did not reveal that Sharif, the store owner, viewed the surveillance tape and identified two suspects other than defendants as being the persons who committed the crimes in the store. Pate also did not report that one of the identified persons, Reed, tried to flee from the police. Additionally, the affidavit did not reveal that a third person, Price, fled when the police approached him. Defendants contend that leaving out information about these suspects was a material omission.

1. Trial Court Rulings

Judge Stark ruled in November 2006 that the “[i]nformation regarding other suspects” “was not an omission or material misstatement.”

When ruling on defendants’ renewed motion to traverse and quash the warrant, Judge Leslie G. Landau ruled as follows: “As to the omission of other suspects. Again, Judge Stark did not find the omission was reckless. And I believe under the standard of review, I’m required to defer to that credibility determination. It certainly is supported by the record where Detective Pate said he did not know about the people until the warrant was served....” The court continued: “But even if it––if the failure to ask about it was reckless, again, I don’t find the omission would have affected probable cause even if it were added... for the following reasons: [¶] First, by the time the warrant was served, there was nowhere near as much information that they were reliably the shooters as there was that the defendants were. The person who [identified] them did so based on the way they moved, not on their faces. So if you look at the identification and what they said in support of it and give that to Judge Kolin, the information they had is not very reliable. [¶] One of them was 85 percent sure based on the dubious basis. One was––as to the other it was 25 percent sure based on the dubious basis. And I don’t know that in a setting where Judge Kolin knew that someone who looked at the way they moved on a video identified them, well, it’s maybe 85 percent this guy, would have undercut his belief in the knowledge from the sources that said we saw these two guys that we know and have known for a long time outside and they did it. [¶] So even if you added, the weak identification evidence of the other suspects would not affect the probable cause on the two people identified based on separate witnesses who had known them for years as the shooters.”

The affidavit actually states that the informant, not Dirty Dawg or Windows, knew defendants for years.

2. Evidence that Detective Pate Did Not Know about the Other Suspects

The record indicates that Detective Pate did not know about the other suspects. Detective Pate testified that he knew that two subjects other than defendants had been contacted and that “a couple [of] people” ran away from the police. He said that he believed that one person was detained. He mentioned that he did not know about the people contacted by the police or a person named Price until after he had received the warrant. The fact that Reed had been questioned for murder was not known by Pate; indeed, Pate testified that it was “new” to him “as of right now.” Pate explained that he told his sergeant and two others about the warrant and the information he had to support the warrant and no one disclosed that there were other suspects or leads. He admitted being aware that a videotape existed, but denied knowing “what that videotape covered or contained in its entirety.”

Detective Pate elaborated: “The fact is we had information that two murderers were in a house very nearby this populated area. There was 100 people standing out there––75 people standing out there. I did not sit down and watch the tape in its entirety. May have taken two or three hours. [sic] What I did is act[] upon the probable cause which we had at that time to try to secure the people that we felt were responsible for this murder. So if you’re asking me, did I watch that tape in its entirety prior to authoring a search warrant, absolutely not.” He added that he did not know if any person had watched the surveillance tape before he obtained the search warrant.

Detective Pate further commented: “If I had a witness tell me that they could identify the suspects and they were not, in fact, the two I was authoring the search warrant for, I would never authorize that search warrant.”

Additionally, Sergeant Huntington, the lead investigator, testified that Detective Pate told him that he had possible suspect information and identified defendants as the suspects. Huntington did not recall telling Pate that there were other suspects being interviewed.

Thus, the record supports a finding that Detective Pate did not know about the other suspects. Defendants therefore must establish that Pate’s failure to garner this information was not merely negligent, but reckless.

3. Failing to Garner the Information about Other Suspects

Defendants contend that Detective Pate’s failure to obtain the information about other suspects was reckless and they cite People v. Ramirez (1983) 34 Cal.3d 541and People v. Willis (2002) 28 Cal.4th 22. Neither of these cases, however, is relevant to the issue presented here. In Ramirez, the Supreme Court held that the good faith exception did not apply when the only basis for the arrest was a warrant that had, in fact, been withdrawn months earlier. (Ramirez, supra, as pp. 546-547.) Similarly, the Supreme Court in Willis refused to apply the good faith exception when the officers conducted a search based on a belief that the person was on parole when the person was not in fact on parole. (Willis, supra, at pp. 45-46.) These cases make it clear that officers are not entitled to rely on erroneous information provided through official law enforcement channels, even where such reliance is in good faith, because such information “was, or should have been, within the ‘collective knowledge’ of the police[.]” (Ramirez, supra, at p. 547.) In contrast, here, Pate did not rely on incorrect information; he simply did not obtain information––both inaccurate and accurate––that was being gathered during a fluid investigation. Pate relied on the information provided by the informant. As already stressed, there is nothing in this record to suggest that Pate or any other officer had any knowledge or reason to believe that the informant was unreliable.

Nothing in this record supports a finding that Detective Pate acted in reckless disregard as the record does not contain evidence that he had reason to know and intentionally omitted information about the suspects or that he wanted to mislead the court. Moreover, even if his failure to obtain and disclose this information was somehow reckless, for the reasons set forth below, we agree with the lower court that this omission was not material.

4. Omission about Other Suspects Was Not Material

Defendants complain that Detective Pate failed to provide information regarding three other suspects. The information about two of the other suspects was based on Sharif’s identification of them from the video. Sharif believed that he could identify the suspects on the videotape from their movements, not from their physical appearance. The only other relevant fact about these two suspects is that one of them fled when the police approached; defendants contend that fleeing is a strong indicator of consciousness of guilt. (See People v. Souza (1994) 9 Cal.4th 224, 227 [flight may be regarded by police officers as suspicious behavior]). A third suspect, Price, ran when the police attempted to detain him for questioning; he was caught and arrested, but later released when it was determined that he had no connection to the crimes.

Adding the abovementioned facts to the warrant would not have altered the magistrate’s probable cause determination. A reasonable magistrate would not have given much weight to an identification based on recognizing movements in a videotape or to the facts that two people in the crowd at the crime scene fled when approached by the police. A reasonable magistrate would give much more weight to the consistent statements of Dirty Dawg and Windows as well as other people at the scene of the crime that defendants were the people who had committed the crimes. Rather than relying on physical movement in a videotape, Dirty Dawg stated that he saw defendants in front of the store just before the crime was committed. Accordingly, we conclude that omitting information about other suspects was not material.

D. Omitting Statements about Beer

Defendants complain that Detective Pate did not include in his affidavit the information gleaned from the videotape that defendants did not take beer from the store, but that another person removed beer after the killers had fled. They claim that including this statement would have shown that Windows’s statement that defendants’ only got beer was incorrect and that he did not have any personal knowledge about the offenses.

The record supports the lower court’s determination that Detective Pate did not view the videotape and therefore this omission was neither deliberately false nor made in reckless disregard of the truth (People v. Bradford, supra, 15 Cal.4th at p. 1297). As the court noted, Pate did not have time to view the tape and there was no reason for him to know that the tape did not show defendants removing the beer. We defer to the lower court for its credibility determinations and the lower court found that Pate did not know that Windows’s statement about the beer was contradicted by the tape.

Further, this comment regarding beer was immaterial. The statement was inaccurate but it did accurately reveal that Windows knew that defendants had not obtained anything of value from the store. Simply because Windows was incorrect in believing that defendants removed beer did not establish that he did not have any personal knowledge about the offenses. Adding to the affidavit a statement that no beer was removed during the attempted robbery and killing at the store would not have altered the magistrate’s probable cause determination given the information provided by Dirty Dawg and other witnesses at the crime scene.

E. Omitting Statements by Idrena Nicks

Defendants assert that the statements by Idrena Nicks––who was Algere’s aunt and Nix’s cousin––that defendants were with her in her house at the time of the attempted robbery and killing of the store clerk should have been included in Detective Pate’s affidavit. They admit that this latter evidence had limited probative value given Nicks’s relationship to defendants, but they assert that this information “would in combination with the other omitted facts nonetheless have provided additional reason to question the sufficiency of the application for the search warrant.” The record supports the lower court’s finding that Pate did not know that Nicks made this statement. Moreover, as defendants concede, this statement has almost no probative value.

In conclusion, even if we add all of the omissions about which defendants complain to the reconstructed affidavit, the result would not be different as the corrected affidavit still supported the probable cause finding.

Since we conclude that the search warrant was legal, we do not address Algere’s arguments that the trial court should determine what evidence should be suppressed or that his statements to the detectives must be suppressed. Our determination that the search was legal also moots Algere’s argument that he should be able to withdraw his no contest plea.

IV. The Trial Court’s Denial of an In Camera Hearing

Defendants argue that the lower court should have conducted an in camera hearing to determine whether the confidential informant actually provided the information in the reconstructed affidavit in support of the warrant. They concede that Judge Stark did conduct an in camera hearing prior to the hearing on their motions to traverse and quash the warrant, but they contend that a second in camera hearing was necessary after they submitted declarations from Dirty Dawg and Windows disavowing the statements attributed to them by the informant in Detective Pate’s reconstructed affidavit. They assert that they should have been able to question the informant to determine whether the informant actually gave Pate this information.

A. Background

In November 2005, defendants moved to unseal the search warrant and to disclose the identity of the confidential informant. Following an in camera hearing, Judge Stark on December 16, 2005, ruled that defendants could receive a partially redacted version of the affidavit. Judge Stark denied the motion to disclose the identity of the confidential informant.

On October 24, 2006, defendants filed a motion to traverse and quash the search warrant and to suppress evidence. Defendants submitted declarations by Dirty Dawg and Windows that they never spoke to anyone about defendants or about the shooting at Golden 7. Defendants asserted that Dirty Dawg was killed in North Richmond in August 2006, and Windows was in prison when defendants filed their motions. Judge Stark denied these motions on November 20, 2006.

In February 2007, defendants moved again to disclose the identity of the informant and for the court to hold an in camera hearing pursuant to People v. Luttenberger, supra, 50 Cal.3d 1. On May 11, 2007, Judge Landau denied the motions, stressing that Judge Stark had already held an in camera hearing on this issue. The court noted that it did not have a record of that hearing. The court ruled that any motion for reconsideration should have gone before Judge Stark within 10 days of her ruling; at that time, defendants should have asked Judge Stark to reopen the issue with the new facts and new law. The court elaborated: “Moreover, I don’t find that––given the record before me, that there is any basis to question Judge Stark’s determination that the confidential informant does not have information concerning the underlying merits of the case or that there is any information that the confidential informant would be providing that would lead to a reasonable possibility that there is evidence on the issue of guilt that could result in exoneration or with substantial knowledge that would affect the Franks determination. [¶] The issue has been fully litigated.... And I don’t find that, under the circumstances, it would be appropriate for me to revisit something that I have no idea what Judge Stark did about or why she did it or what she reviewed and whether she looked at exactly the matters that you are raising now. And without that record, I don’t feel like I’m in a position to reopen the issue. [¶] So I don’t find there has been––the burden has been carried to show new or different facts. Really the arguments are the same as what were brought before Judge Stark. And so I’m not going to reopen that issue at this time.”

B. Standard of Review

We review the trial court’s decision whether to convene an in camera examination and its discovery orders for abuse of discretion. (People v. Luttenberger, supra, 50 Cal.3d at pp. 21, 24.) No abuse of discretion will be found, unless the court has acted in an arbitrary, capricious or patently absurd manner, resulting in a manifest miscarriage of justice. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)

C. The Applicable Law

“[A]ll or any part of a search warrant affidavit may be sealed if necessary to implement the [informant’s] privilege and protect the identity of a confidential informant.” (People v. Hobbs (1994) 7 Cal.4th 948, 971.) When an affidavit is challenged, “in camera review is not required ‘absent some showing that the presumptively valid warrant affidavit is questionable in some way.’ ” (Id. at p. 966.)

In People v. Luttenberger, supra, 50 Cal.3d 1, the Supreme Court fashioned rules, including providing for an in camera hearing, governing discovery of information relating to misstatements or omissions in a search warrant affidavit, where that affidavit relied on a confidential informant for its probable cause showing. After noting that it was inappropriate to order “an in camera hearing and discovery based on nothing more than a [criminal defendant’s] conclusory assertion of need for the discovery” (id. at pp. 20), the court held: “To justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant. [Citation.]... Thus, before an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability or the information he furnished. [Citations.]” (Id. at pp. 21-22.) “To obtain an in camera hearing... the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination.” (Id. at p. 23.)

“Once this preliminary showing is made, the trial court should determine, in its in camera examination of the police records specified by the defendant, whether the defendant’s allegations of material misrepresentations or omissions are supported by the requested materials. If the trial court decides the documents do not support defendant’s charges of misrepresentation, the court should report only this conclusion to the defendant, and should not order production of any of the reviewed materials. [Citations.]... [¶] If, on the other hand, the court finds the requested documents contain information that tends to contradict material representations made in the affidavit, or constitutes material omissions from it, then it should order disclosure of the documents to the defendant....” (People v. Luttenberger, supra, 50 Cal.3d at p. 24.)

D. Applying the Law to the Facts of this Case

In the present case, Judge Stark conducted an in camera hearing in response to defendants’ request to disclose the identity of the confidential informant. The court ruled that defendants were entitled to have the sealed portion of the affidavit, but the court denied their request to disclose the identity of the informant.

The transcript of this in camera hearing is not in the record on appeal.

Defendants filed two more motions pursuant to People v. Luttenberger, supra, 50 Cal.3d 1, and attached declarations of Dirty Dawg and Windows. Both men stated that they never spoke to anyone about defendants. Judge Stark denied these motions on November 20, 2006, and Judge Landau denied these same motions on May 11, 2007. We conclude that the lower court did not abuse its discretion in denying defendants’ requests for an in camera hearing to question the confidential informant.

With regard to the motions decided by Judge Landau, we agree with the lower court that defendants were essentially bringing a motion for reconsideration. They should have brought this motion before Judge Stark, since she made the earlier rulings and had already conducted an in camera hearing. (See In re Kowalski (1971) 21 Cal.App.3d 67, 70 [one trial court judge cannot reconsider and overrule ruling of another judge].)

Furthermore, the lower court properly rejected these motions because this “new” evidence consisting of the declarations of Dirty Dawg and Windows did not require the court to conduct an in camera hearing. “[B]efore an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability or the information he furnished. [Citations.]” (People v. Luttenberger, supra, 50 Cal.3d at p. 22.) A conclusory and uncorroborated defense declaration, which simply denies the acts alleged in the affidavit, or which appears to be unreliable because it is contradicted by established facts is insufficient to require a hearing. (People v. Sandlin, supra, 230 Cal.App.3d at p. 1318 [“[m]ere conclusory contradictions of the affiant’s statements are insufficient”].) The declarations of Dirty Dawg and Windows had little credibility as they were not made to an acquaintance or a friend, but to defense counsel. It is not surprising that Dirty Dawg and Windows denied comments that had been attributed to them once they learned these statements had been provided to the police.

Additionally, in deciding the affiant’s credibility, the court may consider the results of the search. “[A]lthough the probable cause for a search cannot be supported by the results of the search, the results can properly be used to support the truthfulness of the statements in the search warrant affidavit where their veracity has been attacked in connection with a motion for an evidentiary hearing under Franks.” (People v. Benjamin (1999) 77 Cal.App.4th 264, 268.) Defendants maintain that these declarations of Dirty Dawg and Windows raise issues regarding Detective Pate’s credibility and whether the informant actually provided him with any information, but the search pursuant to the warrant showed the truthfulness of Pate’s probable cause statement. The search pursuant to the warrant uncovered the murder weapons, a clothing item with the victim’s blood, and a shoe that left a matching print with the victim’s blood at the crime scene. The information provided by the confidential informant was corroborated, not only by the physical evidence recovered at defendants’ residences, but by the statement of Cordell Johnson. Johnson told the police that defendants were responsible for the crime and that he saw them outside the store just before the murder. Moreover, Algere admitted to the police that Nix and he were involved in the robbery and murder.

Accordingly, we conclude that the lower court did not abuse its discretion in denying defendants’ requests for an in camera hearing to determine whether the confidential informant had in fact provided to Detective Pate the information in the reconstructed affidavit.

V. Algere’s Sentence

Algere entered a plea of no contest to violating section 187, second degree murder, and to violating sections 211, 212.5, subdivision (c), and 664, attempted second degree robbery. He also admitted a firearm enhancement pursuant to section 12022.53, subdivision (a) as to count one.

The court sentenced Algere to an indeterminate term of 15 years to life for his conviction of second degree murder in count 1 and imposed a consecutive 10-year sentence for the firearm enhancement. As for the attempted second degree robbery in count 2, the court sentenced Algere to a concurrent term of 18 months.

Robbery in the second degree “is punishable by imprisonment in the state prison for two, three, or five years.” (§ 213, subd. (a)(2).) Section 664 specifies that punishment for any attempt to commit a crime is punishable by imprisonment for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. Such a sentence would be 18 months, one-half of three years, which was the sentence imposed by the trial court.

However, as Algere asserts, second degree robbery is not punishable pursuant to section 664, but punishable pursuant to section 213, subdivision (b). This provision reads as follows: “Notwithstanding section 664, attempted robbery in violation of paragraph (2) of subdivision (a) is punishable by imprisonment in the state prison.” (§ 213, subd. (b).) The reference to “imprisonment in the state prison,” without further specification, means that the offense is punishable by imprisonment for 16 months, two years, or three years. (§ 18.) Thus, the trial court did not have the discretion to sentence Algere to 18 months.

The state agrees that the lower court imposed an unauthorized sentence, and asserts that we should correct the sentence rather than remand the matter for resentencing. We conclude, however, that remand for resentencing is proper in this case.

The record indicates that the court sentenced Nix to a concurrent one-year term for attempted robbery. This term also appears to be incorrect but, since defendant appears to have benefited from this error, defendant has not appealed his sentence; the state has not objected to this sentence. We therefore will not remand for resentencing of Nix.

The state argues that we should impose a sentence of one-third of the midterm sentence (one-third of two years), which is eight months. The one-third-the-midterm rule of section 1170.1, subdivision (a), applies only to a consecutive sentence. Here, the trial court imposed a concurrent sentence.

An aggregate term of imprisonment under the determinate sentencing law constitutes a total prison term that is a “single term rather than a series of separate terms.” (People v. Savala (1983) 147 Cal.App.3d 63, 68; see People v. Lobaugh (1987) 188 Cal.App.3d 780, 783.) Correcting a sentencing error by excising only the flawed component of the sentence from the aggregate term may be appropriate in some contexts where the interests of justice and judicial economy do not require a restructuring of the entire sentencing format and the preferred remedy would be a minor reduction in the sentence. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)

Here, the attempted robbery term was not a consecutive sentence, but a concurrent sentence. It is unclear what term the court would have selected under section 18. Accordingly, we remand the case to the trial court for resentencing.

DISPOSITION

The matter involving Algere is remanded for the limited purpose of resentencing in a manner consistent with this opinion. In all other respects, the judgment as to Algere is affirmed. The judgment as to Nix is affirmed.

We concur: Haerle, Acting P.J., Richman, J.


Summaries of

People v. Algere

California Court of Appeals, First District, Second Division
Sep 17, 2009
A120719, A119853 (Cal. Ct. App. Sep. 17, 2009)
Case details for

People v. Algere

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRANDON PAUL ALGERE et al.…

Court:California Court of Appeals, First District, Second Division

Date published: Sep 17, 2009

Citations

A120719, A119853 (Cal. Ct. App. Sep. 17, 2009)

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