Opinion
G054085
09-17-2018
THE PEOPLE, Plaintiff and Appellant, v. VANESSA CERDA, Defendant and Respondent.
Tony Rackauckas, District Attorney, David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF1491) OPINION Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks and W. Michael Hayes, Judges. Reversed with directions. Tony Rackauckas, District Attorney, David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Respondent.
* * *
The Orange County District Attorney (district attorney) appeals the dismissal of a criminal prosecution against defendant and respondent Vanessa Cerda. The district attorney contends the trial court misinterpreted a previously assigned judge's order granting a suppression motion brought by Cerda and her codefendant, Armando Verdin. In the earlier proceeding, Cerda and Verdin claimed the police illegally detained them and therefore the court should suppress all the evidence obtained from their detentions, including evidence found when officers later searched their apartments. Although the court granted the suppression motion, the parties disagreed on the scope of the suppression order. When the case was reassigned, the trial court interpreted the suppression order to include evidence found in Cerda's apartment. Without that evidence the prosecutor could not proceed and the court dismissed the case.
We conclude the trial court erred when it concluded the previous judge intended to suppress the evidence found during the search of Cerda's residences. The record shows the previous judge did not address whether Cerda's detention required suppression of the evidence seized under the search warrants. Consequently, we reverse the dismissal order and direct the trial court to permit Cerda to file a new suppression motion and to determine the merits based on the evidence presented by the parties.
I
FACTUAL AND PROCEDURAL BACKGROUND
In February 2013, the district attorney filed an information alleging Cerda and codefendant Verdin possessed a controlled substance while armed, possessed cocaine base for sale, possessed an assault weapon, possessed marijuana for sale, and endangered a child.
In November 2013, Cerda filed a motion to "Traverse, Quash, and Suppress Evidence Pursuant to Penal Code Section 1538.5." Her motion asserted the facts would show that on January 25, 2011, around 7:30 p.m., Santa Ana gang officers detained Verdin after he left an apartment building on South Townsend Street. Around the same time, Cerda left the same apartment to get her infant's car seat. She saw officers detaining someone, but she was too far away to recognize the person. She briefly returned to the apartment, and then carried her youngest child in the car seat while leading her three-year-old child to his babysitter's nearby apartment. According to Cerda, the blinds on the front of her apartment were drawn, no one from outside could see in, and there was no cocaine on a table in the front room. This conflicted with police reports, which claimed the blinds were open, there was cocaine in the front room, and the three-year-old child was inside the apartment.
Officers stopped Cerda and asked who lived in the apartment. She responded she lived there with her sister, but when they asked her the name of her children's father, she told them it was none of their business. At this point, the officers had not asked her about Verdin.
Cerda left both her children with the babysitter and then walked to her car, which was parked in her designated spot in the alleyway near her apartment. Two officers approached her as she got into her car, and asked her about her relationship with Verdin after showing her photos from Verdin's cell phone, but she did not answer. The officers told Cerda they were arresting her on a bench warrant, asked her to get out of the car, and searched her person. Cerda stated Detective Salo claimed, either in a warrant affidavit or at the preliminary hearing, that he detained her for parking illegally and for a narcotics investigation. Cerda denied illegally parking, and claimed no narcotic investigation was pending at the time of her detention, which lasted several hours.
While the officers detained Cerda and Verdin, Cerda claimed in her motion Detective Salo and other officers entered apartment 5 "without invitation, warrant, or legal justification." Cerda maintained there was no one present in the apartment when the officers entered, and denied Salo's claim he entered only after seeing Jaden in the front room near what appeared to be cocaine base on the table.
Officers obtained a search warrant for apartment 5, Cerda's residence, shortly after 1:00 a.m. Salo searched apartment 5 after obtaining the warrant and found mail addressed to Verdin and Cerda. He also found three baggies containing suspected cocaine base, ammunition, suspected gang items, nine-millimeter handguns with rounds and magazines, marijuana, $883 in cash and other items.
The officers determined the residents of apartment 5 were in the process of moving to apartment 3. After obtaining a search warrant for apartment 3, they found more ammunition and marijuana, another handgun, scales, and an AP9 Luger firearm.
Cerda and Verdin filed separate motions to quash and traverse the search warrants. Cerda argued she was illegally detained, claiming she was not illegally parked, and there was no reason to suspect a narcotics violation at the time of her detention, which she asserted was unlawfully prolonged. She also contended officers entered her apartment before they obtained a search warrant, and no exigent circumstances justified the entry because the children were with the babysitter and not in the apartment. Cerda moved to quash the warrants because the officers incorporated information obtained from her illegal detention, and without that information the warrant lacked probable cause. Cerda also argued the search warrant was based on the prior illegal entry and search. She asked the court to traverse the warrant affidavit for false statements and omissions. Finally, Cerda asked for suppression of all evidence obtained from her detention and the searches, including the specific items listed in her motion. Cerda's motion informed the trial court she intended to present evidence at the hearing to support her claims.
In opposition, the district attorney did not concede the illegality of Cerda's detention or that the officers illegally entered apartment 5. The district attorney asserted Detective Salo spotted cocaine through the window before the officers entered apartment 5, and the only evidence they obtained after entering the apartment and before the warrant issued was the observation of mail addressed to Verdin and Cerda. The district attorney claimed the only evidence from Cerda's detention was her acknowledgment she had a relationship with Verdin. The district attorney asserted that if the court excised Cerda's statements and the observation of the mail, sufficient probable cause remained and an evidentiary hearing was unnecessary. The prosecution argued Cerda had not made a preliminary showing "the affiant was intentionally false or recklessly disregarded the truth" based on her denials that a child was in the apartment or that cocaine was observable through the window.
On June 6, 2014, Judge Hayes held a hearing on the motions. During argument, the prosecutor stipulated he would not use the cell phone photos obtained from Verdin's detention. Judge Hayes denied Cerda's and Verdin's motions to traverse the search warrants, finding they failed to make a preliminary showing of intentional falsehood in the affidavits to merit a hearing under Franks. (Franks v. Delaware (1978) 438 U.S. 154.)
Judge Hayes accepted the prosecutor's stipulation and suppressed the photos taken from Verdin's cell phone, but declined to rule on whether Verdin's or Cerda's detention was unlawful, declaring "I have not held a hearing on whether or not the detention itself was lawful," and "I'm not ruling on any detention."
The prosecutor responded, "As to Ms. Cerda, your honor, in her motion to suppress, she does not identify what evidence, if any, would derive from an unlawful detention. So when the court says it's not ruling, I don't think that issue is before the court to even rule on it." The court stated, "That's why I'm not ruling." Seeking clarification, the prosecutor replied, "But the court is denying the 1538.5 as filed." The court replied, "Yes. But I'm doing it based on the status of the motion rather than a factual determination of the findings. Nobody - I haven't heard any facts. I mean, I don't have anything other than a bunch of assertions in some moving papers. So I don't think I can be bound on appellate review for any factual finding." When Cerda's counsel asked whether the court had declined to rule on the legality of Cerda's detention, the court said "[c]orrect" and "I can't be any clearer." The court stated, "I think this is going to surface again." "I'm simply saying for the record I didn't conduct a hearing. I'm just saying there's insufficient evidence to go forward with what we have. And I've accepted the People's stipulation and suppressed the evidence [the photos on Verdin's phone] . . . without holding . . . the additional hearing."
The trial court's minutes reflect the court denied Cerda's motion to quash and to traverse the warrant. The minutes reflect the court separately addressed the motion to suppress evidence under section 1538.5, the prosecutor conceded the court could suppress Verdin's cell phone photos, and the court was not making a finding the detention "was lawful or unlawful."
In October 2014, Cerda filed a "Request for [an] Evidentiary Hearing" "to determine the merits of her position that evidence should be suppressed in accordance with the Fourth Amendment." She attached declarations from witnesses to demonstrate statements in the search warrant affidavits were either deliberately false or made in reckless disregard of the truth. Cerda argued the warrant affidavit failed to disclose that Cerda's statements were made after she was illegally detained. Cerda also asserted police reports and witness statements reflected the officers searched apartment 5 before they obtained the search warrant. Cerda argued she was entitled to an "evidentiary hearing on the previously filed 1538.5 motion." Judge Hayes, however, denied Cerda's request for an evidentiary hearing, and again declined to decide the legality of Cerda's detention.
In November 2014, Verdin petitioned this court for a writ of mandate or prohibition. Cerda joined in the petition. We issued an alternative writ directing the trial court to set aside and vacate its October 27 order and to hold an evidentiary hearing on the section 1538.5 motion to suppress, or to show cause why a peremptory writ should not issue.
On January 16, 2015, Judge Hayes held a hearing in response to the alternative writ. As to Cerda's claim she was illegally detained, the court acknowledged, "I don't know if there's a detention. All I have is what you guys [counsel] say happened, which is part of the problem that the Court of Appeal is going to face is they don't know what people who were there have to say. . . There's no evidence." The court stated it did not "hold a 1538 factual hearing about what happened in the alley. I made a ruling by excising certain information, including the photographs on the phone, and that was based on concessions by the People."
The court announced, "[I'm going to] hold a hearing so we know what happened factually . . . ." The court agreed with the prosecutor the issue before the court was the legality of Verdin's detention. At this point, the prosecutor conceded the detention was unlawful, explaining he would "be unable to satisfy [his] burden to show that [] Verdin was lawfully detained. And I would ask the court, as I did on June 6, [2014], to suppress the evidence that derives from that unlawful detention."
Verdin's counsel and the prosecutor disagreed over how to interpret the prosecutor's concession that Verdin was illegally detained. Verdin's attorney requested to introduce evidence showing the officers' presence outside Verdin's apartment, when they observed contraband inside the apartment, was the product of Verdin's illegal detention. Verdin's counsel acknowledged the detention raised issues that overlapped the earlier motion to quash, explaining the court must determine whether there was an "intervening cause, as to whether or not they would have been there anyway," and resolving that issue depended on whether the court found the officer credible. Counsel agreed with the court the issue he raised was whether the officer "wouldn't have been there except for what he found in the illegal detention [.]"
The prosecutor argued Verdin's proposed evidence was, in essence, an effort to relitigate the earlier denial of his motion to traverse the search warrant, an issue he expressly did not challenge in his writ petition. The prosecutor conceded Verdin's detention was illegal and the "fruits of that detention should be suppressed," but he did not concede the warrant and subsequent search of the apartments were illegal.
The court interjected, "[t]he warrant is not [within] the scope [of the motion]," and proposed to inform the appellate court the prosecution had conceded the illegality of the detention. When Verdin asked the court to suppress the "items [] listed on page 2 of [his] motion,"the court responded, "I'm going to let the Court of Appeal sort all that out." The prosecutor reiterated he was conceding "the detention and the evidence derived from the detention in the alley was unlawful," explaining, "I conceded that on June 6. But I'm conceding it again." The prosecutor, however, limited the scope of his concession to suppression of the "pictures and [Verdin's] statements."
Judge Hayes replied, "You guys can have this fight in the appellate court," and "I've said what I've said. The motion for rehearing . . . is denied; that I'm not going to take any additional evidence; that the court is going to report, as ordered, that it held a hearing, was prepared to have a factual hearing, the People conceded the motion, conceded that the detention and the evidence derived from the detention in the alley was unlawful. And you folks can brief what it all means in the appellate court."
Verdin's counsel objected the court "did not hold a hearing as requested. . . . There has been no evidence received." Counsel emphasized he sought suppression of the "items that are listed in the moving papers," and "I'm quite sure" the People were not "conceding that." Cerda's counsel did not comment or object during the discussion about the scope of the suppression motion.
The court's minutes from January 16, 2015, reflect the court announced it was willing to hold an evidentiary hearing, the "[p]eople then conceded the 1538.5 and agreed that the detention was illegal and all evidence seized as a result of that detention should be suppressed." The minutes also reflect the defense objected an evidentiary hearing was still required to determine whether the officer "would have gone upstairs on the public landing to see the [c]ocaine through the window if the detention did not take place,"the court allowed both sides "to address their legal position in light of the concession by the People and its effect on this case," and the court "decided that no further evidentiary hearing was necessary," since "[t]he People have conceded the [m]otion in [q]uestion and state that the detention and evidence seized as a result of that detention was unlawful. Since any remaining argument appears to be purely legal, this Court will take no further action."
On January 21, this court concluded the trial court had complied with the alternative writ and denied the petition as moot.
The trial court later granted the prosecution's motion to sever Cerda's case from Verdin's. Because of speedy trial issues, Cerda's trial was assigned to a civil department before Judge Marks. Cerda filed a trial brief, which included much of the factual information from her November 2013 suppression motion and transcripts of the earlier proceedings. Cerda asked Judge Marks to exclude "1) . . . all evidence listed in her [section] 1538.5 motion filed on November 27, 2013 because it is fruit of the poisonous tree and the motion was granted. [¶] 2) If all evidence is not suppressed, [] hold a hearing with testimony on what evidence should be suppressed before trial. [¶] 3) If a hearing is not held before trial, consider what evidence to suppress during the trial. However, Defendant asserts this procedure denies her Due Process. [¶] 4) Dismiss all charges against [defendant] pursuant to Penal Code section 1385 [with cases cited]; . . . and, the Due Process clauses of the State and Federal Constitutions."
In March 2017, Verdin pleaded no contest to possession of a controlled substance with a firearm, and possession for sale of cocaine base. The court dismissed the remaining charges and enhancements, and imposed a sentence of four years in state prison, suspended execution of sentence, and placed him on probation. His appeal is pending (G054703).
In a pretrial hearing, the prosecutor argued Judge Hayes suppressed only the photographs retrieved from Verdin's phone. The prosecutor explained the motion to traverse was denied June 6, 2014, and Judge Hayes did not revisit the denial at the January 16, 2015 hearing, but "was merely determining what evidence resulted from an unlawful detention of Mr. Verdin. [¶] Ms. Cerda did not introduce any new arguments at that later hearing. "She merely joined in [Verdin's motion]. We were not actually litigating Ms. Cerda's detention at the last hearing on January 16, 2015."
Judge Marks observed that Judge Hayes's statements seem "to conflict with what came later based on the January 16th, 2015 ruling," explaining "the record seems really clear that Judge Hayes, based on a concession made by the People, found that the detention was illegal and all evidence seized as a result of the detention should be suppressed. [¶] This doesn't say only photographs should be suppressed. There were a whole host of items listed on this motion 1538.5 to suppress. So it wasn't just one or two random items. It was a whole litany, as I understand it." The court pointed out that Cerda's motion to traverse requested suppression of 16 items.
Judge Marks stated Cerda's detention was the product of Verdin's illegal detention, explaining the officers decided to detain Cerda only after they saw pictures of her on Verdin's cell phone. The court reasoned "if it's determined that the initial search was illegal, then by extrapolation what information they base their search and stop of Ms. Cerda would have been tainted."
The court then observed, "I am in this unfortunate . . . situation as the trial judge . . . with a history that is not crystal clear. [¶] But, as I read these minutes, which . . . reflect[s] the court record and the findings made by the court, I have to conclude, reading the literal words utilized, there is no restriction, there is no caveat, there is no finding made that I can interpret in the manner [the prosecutor] would like the court to, as much as I would. But I think the plain language, if one reads this, states very clearly the detention was found to be illegal and all evidence seized as a result of that detention should be suppressed."
After hearing further argument, the court observed "it might have been a heck of a lot easier to have just proceeded with an evidentiary hearing on these issues," but "that's not what occurred. So now this court is trying to interpret what [Judge Hayes's] ruling was and the minute order that issued." In reaching its conclusion, and relying on "the plain meaning of the minutes," the court found no basis to conclude Judge Hayes intended to suppress "only items 12 and 13 [from Cerda's November 2013 suppression motion], which are the photos and the cellular phone . . . ." The court found the prosecutor's concession in the January 16 hearing that Verdin was illegally detained resulted in Judge Hayes suppressing the evidence seized in executing the search warrants.
Judge Marks further explained, "I'm not suppressing all the evidence based on any ruling I'm making here today. I'm relying upon a record, and the minutes are the record that the court looks to in interpreting what items Judge Hayes suppressed, not "the arguments made at the hearing." Based on the prosecutor's earlier statement he could not proceed if Judge Hayes had suppressed all the evidence listed in Cerda's motion, the court dismissed the action. The prosecutor noted "the dismissal of this case was over the People's objection."
II
DISCUSSION
A. The Trial Court Erred When it Found Judge Hayes Previously Had Granted Cerda's Motion to Suppress Evidence
The District Attorney contends Judge Marks erred in concluding Judge Hayes had suppressed the evidence obtained from her detention, including the evidence found when officers executed the search warrants. We agree.
The parties agree Judge Marks exercised her authority under section 1385, which authorizes a court to dismiss an action in the furtherance of justice. (See People v. Bonds (1999) 70 Cal.App.4th 732, 739-740 [court may dismiss under section 1385 when the prosecution is unable to proceed because it lacks of admissible evidence].) We review a section 1385 dismissal for abuse of discretion. (People v. Pedroza (2014) 231 Cal.App.4th 635, 650.) A trial court abuses its discretion when it considers impermissible factors in ruling on a section 1385 motion to dismiss. (People v. Lua (2017) 10 Cal.App.5th 1004, 1020.)
We begin our analysis by noting Judge Marks faced the unenviable task of sorting through a lengthy and confusing record covering several motions, two hearings, and an intervening alternative writ. As Judge Marks observed, this could have been avoided had there been an initial evidentiary hearing. Nevertheless, we conclude the record reflects Judge Hayes denied Cerda's motions to traverse and quash the search warrants, and therefore did not suppress the evidence that officers found in executing the warrants. Judge Hayes never adjudicated whether officers had illegally detained Cerda, as opposed to Verdin. And even as to Verdin, the court suppressed only Verdin's cell phone and its contents, including photos, and any statements Verdin made to the officers during his detention. Judge Hayes never resolved whether the officer's observations through apartment 5's window, which led them to enter apartment 5 and to obtain a search warrant, were the "'fruit of the poisonous tree'" from an unlawful detention. (See People v. Thierry (1998) 64 Cal.App.4th 176, 180 [in deciding whether evidence is the "'fruit of the poisonous tree'" and therefore inadmissible, the court asks "'"'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint'"'"].)
Verdin's writ petition, which Cerda joined, did not ask for a hearing to traverse the warrants. At the January 2015 hearing, Judge Hayes and the parties apparently overlooked Cerda's joinder and construed this court's alternative writ as ordering the court to conduct an evidentiary hearing on Verdin's claim his detention was unlawful. Verdin argued facts contained in the search warrant affidavit were derived from his illegal detention. The prosecutor conceded Verdin's detention was unlawful, but argued the only evidentiary items derived from the detention were the photographs on his cell phone and his statements to police officers. Judge Hayes concluded the suppression motion did not reach the evidence found in executing the search warrants ("the warrant is not the scope here"). More importantly for our purposes, Judge Hayes did not make any finding concerning Cerda's detention or evidence derived from it.
The court's minutes from January 16, 2015, reflect the court was ready to proceed with an evidentiary hearing, but the "[P]eople then conceded the 1538.5 and agreed that the detention was illegal and all evidence seized as a result of that detention should be suppressed." The minutes state the defense objected that an evidentiary hearing was still required to determine whether the officer "would have gone upstairs on the public landing to see the [c]ocaine through the window if the detention did not take place," the court allowed both sides to address their legal position in light of the People's concession, and "decided that no further evidentiary hearing was necessary." The minutes conclude by noting "[t]he People have conceded the [m]otion in [q]uestion and state that the detention and evidence seized as a result of that detention was unlawful. Since any remaining argument appears to be purely legal, this Court will take no further action."
Although Verdin and Cerda brought separate motions to suppress, Judge Hayes's January 16, 2015 minutes did not specify which motion the court granted. Nor did the minutes specify the evidence Judge Hayes suppressed as a result of the prosecution's concession. The transcript of the hearing, however, showed the parties addressed only the legality of Verdin's detention at the hearing. Cerda's counsel's comments at the hearing were brief, simply acknowledging Cerda did not have a right to challenge Verdin's detention. Of course, Cerda still had pending her own suppression motion based on her claim officers exploited her illegal detention to enter her residence illegally.
We therefore must harmonize the discrepancy between the minutes of the January 16 hearing and the transcript of those proceedings. But "when the record is in conflict and cannot be harmonized, '". . . that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence."'" (People v. Malabag (1997) 51 Cal.App.4th 1419, 1426.)
Here, the reporter's transcript of the January 16 hearing is far more detailed in covering the events of these complicated proceedings and therefore is entitled to greater credence than the court's minutes. When considering the trial court's comments on the record, the arguments of counsel, and the earlier proceedings leading up to the January 16 hearing, it is apparent the prosecution did not concede, and Judge Hayes did not find, that Cerda's detention was unlawful, and that the evidence seized in executing the search warrants should be suppressed. As Verdin's counsel noted when objecting to the court's failure to conduct "a[n evidentiary] hearing as requested" in response to the alternative writ, he had sought suppression of all "items that are listed in the moving papers," and "I'm quite sure" the People were not "conceding that." The trial court therefore erred in basing its ruling on the minutes from the January 16 hearing.
The district attorney suggests Judge Marks improperly reconsidered Judge Hayes's earlier denial and suppressed the evidence. The record does not support this claim. Judge Marks clearly stated she relied on the January 16 minutes to interpret the scope of Judge Hayes's suppression order and was not making an independent determination on the merits of the motion. --------
Cerda argues "the record is clear" Judge Hayes "never denied" Cerda's motion, and Judge Marks acted within her discretion to grant the motion based on the prosecutor's concession Verdin's detention was unlawful and the fruits of that detention should be suppressed. We disagree. In June Judge Hayes effectively denied Cerda's motion to traverse and declined to entertain evidence concerning her detention, and again denied Cerda's request for an evidentiary hearing in October 2014. As explained above, Judge Marks did not purport to grant a suppression motion, but rather interpreted Judge Hayes's January 2015 order.
Cerda claims the People conceded "the search was unlawful and that 'any evidence derivative thereof should be suppressed.'" The prosecutor conceded Verdin's detention was unlawful, but he never conceded Cerda was illegally detained, or that evidence obtained from the illegal detention of Verdin inured to Cerda's benefit. The prosecutor never conceded or agreed that the court should suppress all the evidence listed in Cerda's suppression motion, and Judge Hays did not do so. Notably, Cerda did not ask Judge Hayes to dismiss the case for lack of evidence, and the case remained pending another 18 months. As the district attorney points out, there would have been no reason to ask Judge Marks for an evidentiary hearing if Judge Hayes had suppressed all the evidence against Cerda on January 16.
We conclude the trial court erred in concluding the January 16 minutes required it to conclude Judge Hayes previously suppressed all of the evidence against Cerda. The dismissal of the action was not in furtherance of justice and constituted an abuse of discretion. B. Cerda Must Be Allowed an Opportunity to Fully Litigate Her Fourth Amendment Claims
As recounted above, Cerda's motion to suppress, filed in November 2013 alleged facts which, if true, arguably demonstrated a violation of her Fourth Amendment rights. In June 2014, Judge Hayes did not receive evidence or allow Cerda to fully litigate her motion at a special hearing, finding the motions contained insufficient factual information to rule on the motion to traverse, and he declined to rule on the detentions. The court's comments seemed to invite a subsequent motion if Cerda provided additional facts or evidence. In October 2014, Cerda requested an evidentiary hearing on her motion with attached declarations, but Judge Hayes again denied her request. We issued an alternative writ directing the court to conduct an evidentiary hearing or show cause. The court complied as to Verdin and offered to conduct an evidentiary hearing, but concluded the prosecution's concession Verdin was illegally detained resolved the issues raised in petition.
We conclude the court denied Cerda her right to fully litigate the validity of her search and seizure issues. Because reversal of the dismissal without affording Cerda an opportunity to fully litigate these issues will invite a future appeal if she is ultimately convicted, we direct the trial court on remand to permit Cerda to file a new section 1538.5 motion and grant her an opportunity to fully litigate the validity of a search or seizure on the basis of the evidence presented.
III
DISPOSITION
The order dismissing the action is reversed. The trial court is directed on remand to permit Cerda to file a new section 1538.5 motion. If Cerda files a motion, the court shall grant her an opportunity to fully litigate the validity of a search or seizure on the basis of the evidence presented.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.