Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct.No. SS062661A
Duffy, J.
Following denial of his motion to suppress the use of evidence (Pen. Code, § 1538.5), Jose Cruz Lopez, the petitioner herein, pleaded guilty to possessing cocaine for sale (Health & Saf. Code, § 11351), possessing marijuana for sale (id., § 11359), and possessing a controlled substance while armed with a loaded firearm (id., § 11370.1, subd. (a)). He admitted to a prior conviction that subjects him to increased punishment under the “Three Strikes” law. (Pen. Code, § 1170.12, subd. (c)(1).) The trial court sentenced him to four years in prison.
On direct appeal, we affirmed the judgment. In an order filed separately, we denied a petition for writ of habeas corpus. Petitioner petitioned for review from the latter action in the Supreme Court (case no. S166415), which granted his petition for review, transferred the matter to this court, and directed us “to issue an order to show cause, returnable before [this] court, ordering the Director of the Department of Corrections and Rehabilitation, when the matter is ordered on calendar, why trial counsel was not ineffective for failing to argue before the trial court that the evidence obtained from defendant’s residence should have been suppressed because Jose Hernandez Lopez was not on probation at the time of the search and officers could not reasonably rely upon his probation search condition to justify the search.”
Reconsidering the matter, we will grant the petition for writ of habeas corpus.
FACTS AND PROCEDURAL BACKGROUND
The case was litigated below based on papers filed in court and a police report. On direct appeal the parties relied on those documents, as did we in deciding that case. Petitioner has requested that we take judicial notice of the record in his direct appeal, and we hereby do so. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
I. Facts Taken From the Record of Petitioner’s Direct Appeal
In the first half of September of 2006, a confidential informant of unknown reliability who was known to be a drug user informed Seaside police that a Latino male, known to the informant as Muchito, drove a reddish Toyota truck and was selling methamphetamine. The informant described Muchito as a short Latino male with a medium build and a mustache.
A few days after the confidential informant gave the police the foregoing information a citizen came to the police station to report drug activity at 1401 Elm Avenue in Seaside. The citizen reported seeing marijuana, a white powdery substance resembling cocaine, and a substance resembling shaved ice at the Elm Avenue residence. The citizen said that a man named Muchito was responsible for the drug-related activity and that his real name was Jose Lopez. The citizen described Lopez as “a Hispanic male, short, medium built with a black mustache.” The citizen advised that Lopez drove a reddish Toyota sport-utility vehicle. The citizen asserted that Lopez had been arrested for domestic violence in the past and commented that the police accordingly should have Lopez’s photograph on file.
The police checked their files for a Jose Lopez who lived at 1401 Elm Avenue and learned that a person with that name who resided at that address had previously been arrested. The police consulted the Monterey County Superior Court computer database and found that charges had been filed in the case (case no. MS241832A), and that the foregoing Jose Lopez had been sentenced to probation in that case, one of the conditions being that he submit to the search and seizure of his person, residence, and areas within his control. Seaside Police Detective Richard Cohon contacted the Monterey County warrant control office, which confirmed that Lopez lived at 1401 Elm Avenue in Seaside.
About 9:00 a.m. on September 11, 2006, Detective Cohon and Seaside Police Detective Bruno Dias drove by the house at 1401 Elm Avenue. The two detectives saw a reddish Toyota 4Runner sport-utility vehicle parked in front of the house. Also in front was Johnny Hernandez, who told the officers that Lopez was inside the house. When the police asked Hernandez if he was carrying any illegal substances, Hernandez admitted that he was and pulled some marijuana from his pocket.
After another officer arrived to detain Hernandez, detectives Dias and Cohon knocked at the residence and petitioner came to the door. The police perceived that he was a Latino male, five feet four inches tall and about 140 pounds, and that he had a mustache. He said that he was Jose Lopez. Detective Dias explained that he and Detective Cohon planned to conduct a probation search of his house. Petitioner replied “okay” and stayed outside as the detectives entered the residence. Petitioner did not tell the detectives that he was not on probation or question their intended action in any other way. Nor did the detectives ask petitioner whether he was on probation or had been convicted in case number MS241832A.
A search of the house disclosed two and one-half pounds of marijuana, one and one-half pounds of powder cocaine, and one-half pound of methamphetamine. The officers also found a.22 caliber revolver and evidence of narcotics trafficking, including $4,655 inside a pair of pants in a laundry bag in a closet.
While the detectives were at the residence, Agapito Reyes Flores arrived. Reyes admitted that he was visiting to buy $20 worth of marijuana from Muchito and that he had been buying drugs from Muchito for about six months.
At the police station, as Detective Dias prepared to book petitioner, he noticed that the date of birth given by petitioner did not match the date of birth shown on the probation documents. Detective Dias compared fingerprint return records and realized that there might be two men named Jose Lopez residing at 1401 Elm Avenue. Further inquiry revealed that the Jose Lopez on probation had a middle name of Hernandez and the Jose Lopez who had just been arrested had the middle name of Cruz. The police report acknowledged that “Jose Cruz LOPEZ is not on parole or probation” and that “[a]ll of the indicia found in the residence [were] under the name Jose Cruz LOPEZ.” In fact, on August 17, 2006, Jose Hernandez Lopez had reported to the county jail to serve a one-year term. August 17, 2006, was also the date on which petitioner moved into the house at 1401 Elm Avenue.
II. The Habeas Corpus Pleadings’ Averments
Petitioner has filed a petition for writ of habeas corpus in which he claims he received the ineffective assistance of counsel at trial. On our issuance of the order to show cause, respondent filed a return and petitioner filed a traverse.
Petitioner’s petition and traverse contain the same material allegations. He avers that trial counsel made two mistakes regarding the motion to suppress the use of evidence (Pen. Code, § 1538.5) that prejudiced him sufficiently to constitute ineffective assistance of counsel. First, counsel had discovered and had attached to defendant’s motion to suppress two pages retrieved on February 2, 2007, from the Monterey County Superior Court database showing that the individual for whom the police mistook petitioner, Jose Hernandez Lopez, had been sentenced, on August 10, 2006, to serve a term of 365 days in county jail (minus 43 days of service credits). Nevertheless, counsel failed to alert the court during the hearing that likely as of August 18, 2006, and no later than August 21, 2006, the database had been updated to show the probation revocation and termination and petitioner’s jailing, and that the updating had put the police on notice and they should have noticed that Jose Hernandez Lopez’s probation had been revoked and terminated and that he was in jail. Second, counsel failed to argue to the court that because of the information contained in the database, to which the police had access, the police’s action in searching petitioner without either a warrant or authorization as a probation search was unreasonable under the Fourth Amendment.
In its return, respondent admits that Jose Hernandez Lopez was sentenced to jail on August 10, 2006, but denies that counsel did not advise the trial court of that fact and that the court was unaware of that fact. Nevertheless, the hearing transcript shows that petitioner is correct with regard to both averments. Counsel presented a number of legally supportable and well-reasoned arguments supporting the motion to suppress, but he did not mention the fact, available to counsel because it was contained in an exhibit attached to defendant’s moving papers, that the superior court had revoked and terminated Jose Hernandez Lopez’s probation and incarcerated him weeks before the search that led to petitioner’s arrest. And the court, notwithstanding that the exhibit attached to petitioner’s motion to suppress was available to it, was not aware that Jose Hernandez Lopez was not on probation when petitioner’s house was searched and in fact had been sent to jail. The hearing transcript shows that both parties and the court believed that Jose Hernandez Lopez had remained on probation but had moved from the 1401 Elm Avenue address for some reason other than being jailed for violating probation. At one point, for instance, the prosecutor argued, “In this case, the error was not attributed to law enforcement. The other [sic] Jose Hernandez Lopez who did have a search and seizure waiver did not give any notice to probation or parole that he had moved....” Defense counsel argued, “For all we know, Jose Hernandez Cruz[,] when he moved out two months before or so[,] notified his probation officer and was moving and living in another address. A simple call to Monterey County Probation would have determined [that] and therefore made this so-called probation search unreasonable.” The court commented, “Here we have a situation where... Jose Hernandez Lopez, it was his obligation to notify his probation officer that he had moved.” The hearing proceeded along these lines of reasoning throughout. Tellingly, at one point defense counsel stated, “it’s a reasonable inference that [Jose Hernandez Lopez] was in good standing with his probation officer[,] which once again belies any reasonableness to the acts of the officers in this case and failing to take the most minimal of all efforts to determine these facts.” In fact, of course, that individual had been jailed for violating his probation and defense counsel’s exhibit attached to the suppression motion showed it.
Respondent expressly declines to admit or deny that the superior court’s database was updated on August 17, 2006, to reflect the change in Jose Hernandez Lopez’s probationary status.
DISCUSSION
I. Habeas Corpus Principles
A prisoner may, within limits, challenge the legality of confinement via habeas corpus proceedings. (People v. Villa (2009) 45 Cal.4th 1063, 1069; see Cal. Rules of Court, rule 8.380(a).) To be successful in such a challenge and establish entitlement to relief, a habeas corpus petitioner must also satisfy requirements of both pleading and proof. (See, e.g., In re Sassounian (1995) 9 Cal.4th 535, 546-547.) At the pleading stage, the petitioner must make “ ‘ “a sufficient prima facie statement of specific facts which, if established, entitle him to... relief...” ’ ” (In re Large (2007) 41 Cal.4th 538, 549) but need not prove them then (see In re Hardy (2007) 41 Cal.4th 977, 981-982). If the petitioner sufficiently alleges facts that, if proved, would entitle the petitioner to relief, an order to show cause must issue. (See id. at p. 1018.) “When we issue[] an order to show cause..., our order represent[s] a ‘preliminary assessment that... petitioner would be entitled to relief if his factual allegations are proved.’ ” (Ibid., italics deleted.)
“The petitioner in a habeas corpus proceeding bears the ultimate burden of proving the factual allegations that serve as the basis for his or her request for habeas corpus relief. [Citation.] Once the issues of fact have been joined by the respondent’s filing of the return to the petition and the petitioner’s filing of the traverse, the court may deny relief if it concludes that the petitioner has not alleged facts sufficient to warrant relief. [Citation.] If relief depends upon the resolution of disputed issues of fact, the court may order an evidentiary hearing and make findings of fact with regard to such issues. [Citation.] The various exhibits that may accompany the petition, return, and traverse do not constitute evidence, but rather supplement the allegations to the extent they are incorporated by reference.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 675.)
Accordingly, we regard the Monterey County Superior Court website printout and the affidavits supplied by petitioner not as evidence but as items supplementing petitioner’s allegations.
“The requirement that the return allege facts responsive to the petition is critical, for the factual allegations in the return are either admitted or disputed in the traverse and this interplay frames the factual issues that the court must decide. Facts set forth in the return that are not disputed in the traverse are deemed true. [Citation.] Conversely, ‘[w]hen the return effectively acknowledges or “admits” allegations in the petition and traverse which, if true, justify the relief sought, such relief may be granted without a hearing on the other factual issues joined by the pleadings.’ ” (People v. Duvall (1995) 9 Cal.4th 464, 476-477.) “This process of defining the issues is important because issues not raised in the pleadings need not be addressed.” (Id. at p. 478.)
“ ‘When an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition.... While the traverse may allege additional facts in support of the claim on which an order to show cause has issued, attempts to introduce additional claims or wholly different factual bases for those claims in a traverse do not expand the scope of the proceeding[,] which is limited to the claims [that] the court initially determined stated a prima facie case for relief.’ ” (In re Lawley (2008) 42 Cal.4th 1231, 1248.)
“ ‘Because the issuance of an order to show cause reflects the issuing court’s determination that the petition states facts which, if true, entitle the petitioner to relief [citations], the respondent should recite the facts upon which the denial of petitioner’s allegations is based, and, where appropriate, should provide such... materials as will enable the court to determine which issues are truly disputed.’ [Italics omitted.] We recognize, of course, that the truth of some factual allegations is known only to the petitioner or to sources not available to the respondent. A denial of those allegations with an explanation that evidence to refute them is unavailable is sufficient to identify a disputed factual issue which, unless the allegation is abandoned in the petitioner’s traverse, the truth of which may have to be determined through an evidentiary hearing at which the petitioner’s credibility can be tested.” (In re Gay (1998) 19 Cal.4th 771, 783, fn. 9.)
We noted earlier that respondent has neither admitted nor denied that the superior court’s database was updated on August 17, 2006, to reflect the change in Jose Hernandez Lopez’s probationary status. This constitutes a tacit admission of the truth of that allegation. Respondent was required to “either admit the factual allegations set forth in the habeas corpus petition, or allege additional facts that contradict those allegations.” (People v. Duvall, supra, 9 Cal.4th at p. 483, italics omitted.) An exception exists and is required for situations in which respondent cannot obtain access to relevant information in preparing its return. In such a case the return need only contain honest, reasonable (see id. at p. 484), and specific (see id. at p. 485) allegations that “(i) [respondent] has acted with due diligence; (ii) crucial information is not readily available; and (iii)... there is good reason to dispute certain alleged facts or question the credibility of certain declarants....” (Ibid.; see In re Gay, supra, 19 Cal.4th at p. 783, fn. 9.) By contrast, when a return contains a respondent’s bare “attempted reservation that they neither admit nor deny the averments by petitioners” (George v. Beaty (1927) 85 Cal.App. 525, 528), “the material allegations of the petition, in the eyes of the law, stand admitted” (ibid.; see also Rice v. Superior Court (1975) 49 Cal.App.3d 200, 202-203.)
George v. Beaty, supra, 85 Cal.App. 525, involved an original proceeding for writ of mandamus and the respondents were the members of the Los Angeles County Board of Supervisors. The principles involved, however, are the same: the seeking of a writ, the filing of a return, and the nature of the allegations made in each pleading. (See id. at pp. 527-528.)
II. Claim of Ineffective Assistance of Counsel
The police searched petitioner’s residence and found inculpatory items in it because they believed, mistakenly, that he was Jose Hernandez Lopez, who had lived at the same address in Seaside before being sent to jail for a probation violation. The police discovered their mistake only after conducting the search.
Before conducting the search, the police inspected the Monterey County Superior Court online database and found that a Jose Lopez who resided at the same address as petitioner was on probation. The police failed to notice, however, that the individual on probation was Jose Hernandez Lopez, whereas petitioner is Jose Cruz Lopez. They also failed to notice that the database showed that Jose Hernandez Lopez was in jail because his probation had been revoked and terminated.
Petitioner attaches an exhibit consisting of a Monterey County Superior Court minute order showing that Jose Hernandez Lopez’s probation was revoked on August 10, 2006, and that he was sentenced to 365 days in jail with only 43 days’ credit. In petitioner’s view, this means that the police reasonably should have known Jose Hernandez Lopez would be in jail on September 11, 2006, the day they arrested petitioner. Petitioner also attaches his counsel’s declaration that a court official told him the information should have been posted on the court’s website on August 18, 2006.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to petitioner’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
A. Petitioner’s Argument
The case hinges on our acceptance, or not, of this argument by petitioner: “In their report concerning the search, the police indicated that they learned of Jose Hernandez Lopez’s probation search clause by examining the Superior Court database for case number MS241832A. [Citation.] Defense counsel also examined the database and submitted a February 2, 2007 printout as an exhibit to his motion. [Citation.] However, counsel missed the dispositive fact included in his exhibit. The printout reveals that Jose Hernandez Lopez was sentenced to a 365 day jail term on August 10, 2006. [Citation.] Counsel did not alert the court to this fact. [¶] In addition, counsel failed to present evidence that the information in question was on the court’s website on September 11, 2006. Such information was readily available.” As alluded to, habeas counsel attached to the petition an exhibit in which he avers that a deputy court clerk supervisor stated that the entries regarding Jose Hernandez Lopez’s revocation and termination of probation and his remand to jail were made on August 17, 2006, and should have been available for viewing on the superior court’s website the next day. Habeas counsel attached to the traverse a similar exhibit. In it, he avers that a second superior court employee affirmed that the information regarding Jose Hernandez Lopez’s probation-revocation proceedings was entered in the database on August 17, 2006, and should have been publicly accessible on the court’s website the next day. In unusual circumstances, the information might take as many as four days to appear after entry into the database, but that would be the maximum extent of any delay. So on any day after August 21, 2006, the police, on consulting the database, should have noticed that the person they believed to be on probation in fact was not and instead had been jailed.
Respondent has either admitted the truth of these allegations or, by declining to admit or deny them, has conceded their truth. We do not believe this is a case in which the habeas corpus petition “contain[s] factual allegations that, under the circumstances of a particular case, would be difficult or impossible for the respondent to contradict with contrary factual allegations prior to an evidentiary hearing.” (People v. Duvall, supra, 9 Cal.4th at p. 484; see In re Gay, supra, 19 Cal.4th at p. 783, fn. 9.) There is no reason to believe that respondent could not have discussed the timing of the posting of the probation revocation and termination information on the superior court database with the court’s employees; the information does not involve privileged or confidential judicial functions from which the executive branch of government would ordinarily be excluded and indeed, counsel for petitioner was able to speak with two employees about the timing as a private citizen and a member of the bar. In such circumstances, a general denial of the allegation regarding the availability of the information to the police would not have sufficed (People v. Duvall, supra, 9 Cal.4th at p. 485), and neither does respondent’s refusal to admit or deny the allegation without alleging contradictory facts (id. at p. 483). “Once an [order to show cause] has issued, we expect the People to conduct a reasonable investigation of the allegations of the petition that have resulted in the [order to show cause], and to frame the return in light of the results of that investigation.” (Id. at p. 490 (conc. & dis. opn. of Arabian, J.).) Either respondent did not do this or its investigation did not uncover anything to contradict the allegations. In either event, they stand. (George v. Beaty, supra, 85 Cal.App. at p. 528; see Duvall, supra, at p. 483.)
At this stage we do not discern a definite need for an evidentiary hearing—although, as we will explain, we will remand this case for limited further proceedings. The pleadings have established almost all of the material facts. Given them, we agree with petitioner that he may have received ineffective assistance of trial counsel.
B. Counsel’s Performance
Though trial counsel performed ably in almost every respect in defending petitioner and the record generally shows his diligence, knowledge, and attention to his craft, for some unaccountable reason he missed the crucial piece of information that the database showed that Jose Hernandez Lopez’s probation had been revoked and terminated (meaning that he would no longer be subject to a probation search even if he had remained at 1401 Elm Avenue) and that he no longer lived at that address because he was serving a jail sentence.
We recognize that when “the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) This is a case, however, in which there simply could be no satisfactory explanation for counsel’s omission, and there is no need to try to procure one at a full evidentiary hearing. The exhibit to the suppression motion counsel prepared and submitted on behalf of petitioner showed the revocation and termination of probation and the jailing of Jose Hernandez Lopez, but, inexplicably, counsel did not point out those important facts in the moving papers or in arguing the motion before the trial court. Counsel was deficient in failing to call the court’s attention to these circumstances.
C. Prejudice
With regard to prejudice, we conclude that limited further proceedings in the trial court should establish whether a reasonable probability exists that if trial counsel had made the trial court aware of additional problems with the police investigation the court would have granted the motion to suppress the use of the evidence taken from petitioner’s house as a result of the invalid warrantless search. We will set forth our views in the section that follows.
III. Remedy
“The exclusionary rule allows ‘[t]he criminal... to go free because the constable has blundered.’ [Citation.] Nevertheless, irrespective of the cost ‘ “there is another consideration—the imperative of judicial integrity.” [Citation.] The criminal goes free, if he must, but it is the law that sets him free.’ [Citations.] ‘[T]he purpose of the exclusionary rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” [Citation.]’ ” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 541.)
Nevertheless, because the cost to society of freeing a known criminal is high, availability of the ultimate remedy, i.e., suppressing the use of the evidence obtained through a Fourth Amendment violation, is constrained. (See generally Herring v. United States (2009) 555 U.S. __ [129 S.Ct. 695] (Herring).)
We apply Herring, supra, 129 S.Ct. 695, to our analysis even though it is of recent vintage. “A habeas petitioner... may not raise Teague [v. Lane (1989) 489 U.S. 288] to bar the application of a new rule. [Citation.] Thus... the state habeas courts can elect to apply a non-retroactive new rule when considering a state habeas petitioner’s claims.” (Delgadillo v. Woodford (9th Cir. 2008) 527 F.3d 919, 928.) Moreover, it is no secret that Herring is the latest in a series of United States Supreme Court decisions that have limited the exclusionary rule in the last two or three decades. The decision in Herring is evidence that the trend toward narrowing the exclusionary rule has continued since the United States Supreme Court itself noted it eleven years ago (Pennsylvania Bd. of Probation and Parole v. Scott (1998) 524 U.S. 357, 364, fn. 4). Thus, if petitioner is entitled to relief under Herring, he would have been entitled to it under the law in effect at any earlier relevant time. Accordingly, we look to Herring to determine whether petitioner is entitled to a remedy.
The Fourth Amendment does not contain a right to have otherwise admissible evidence excluded from use against oneself. Instead there is a “judicially created rule” (Herring, supra, 129 S.Ct. at p. 699) mandating such exclusion as necessary “ ‘to safeguard Fourth Amendment rights generally through its deterrent effect.’ ” (Ibid.) Because the exclusionary rule is a safeguard based on the policy consideration of deterring police misconduct, it does not confer any personal right (id. at p. 700). It is applied when the cost of applying it is justified by a sufficient likelihood that doing so will deter future particularly undesirable conduct by the state, but only then. (See id. at pp. 700-702.) In other words, whether an individual is entitled to have unlawfully seized evidence excluded in trial proceedings “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” (Id. at p. 698.) “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” (Id. at p. 702.)
The standard announced in Herring, supra, 129 S.Ct. 695, is that the use of evidence seized in violation of the Fourth Amendment should be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer (id. at p. 703), a court finds that the police have engaged in “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” (Id. at p. 702; see also id. at p. 703; cf. id. at p. 704 [concluding paragraph contrasting systemic error and recklessness with negligence but not mentioning gross negligence].) Recurring or systemic negligence is not at issue here, so whether petitioner is entitled to a remedy turns on whether the action of the police in searching 1401 Elm Avenue in Seaside was grossly negligent or worse, given that petitioner was not on probation (and that the similarly named man who was once on probation was in jail and no longer lived there) and the Monterey County Superior Court database contained this information. But we do not know from the record in the direct appeal and the averments whether the information was available to the police in the same clear format shown in trial counsel’s exhibit when the police ran a probation status check. The exhibit is dated February 2, 2007, and petitioner avers that the exhibit was retrieved from the website on that day. But the police consulted the superior court database sometime in the first half of September of 2006. The format could have changed in the interim. Whether the police were grossly negligent or worse may depend on whether such a change in format occurred and, if it did, the extent to which it may have obscured the relevant information.
We wish to accord due process of law to both parties and a procedure that will ferret out the truth of whether the police were grossly negligent or worse, which in turn should establish whether petitioner is entitled to relief. If the police had access to information in the form of the Monterey County Superior Court web pages that trial counsel attached to the motion to suppress, they may have been grossly negligent not to notice that they had the wrong Jose Lopez. We predicate our finding of possible ineffective assistance of counsel on the answer to that question, but that does not mean that the facts have been conclusively established. To be precise, we do not know what the police saw. If the prosecution acknowledges that the police saw the same document that counsel for petitioner submitted along with his motion to suppress, the court may be able to resolve this controversy without taking testimony. If the prosecution does not so acknowledge or there is some other difficulty, the court can conduct a broader hearing and witnesses can be summoned. We think the remedy we afford here is fair to both parties and serves judicial economy.
DISPOSITION
The petition for writ of habeas corpus is granted. The judgment of the Monterey County Superior Court in case number SS062661A is vacated. The case is remanded to the superior court with directions to appoint new counsel to represent petitioner, to permit petitioner to withdraw his guilty plea, to permit petitioner to file a new motion to suppress the use of evidence under Penal Code section 1538.5, and to determine whether the police engaged in deliberate, reckless, or grossly negligent conduct with respect to any actions that implicated petitioner’s Fourth Amendment rights. If the trial court denies the new suppression motion, it is directed to reinstate the judgment. If the trial court grants the new suppression motion, the district attorney may elect whether and how to proceed.
WE CONCUR: Rushing, P. J., McAdams, J.