Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR908439 & 908705
Haerle, J.
I. INTRODUCTION
Appellant appeals from judgments of conviction in two consolidated cases in Lake County Superior Court. Both cases involved principally charges of possession and transportation of methamphetamine. The conviction in the first-numbered case (informations in both cases were filed the same day, May 4, 2006), came as a result of a “slow plea” to one of three counts charged. The conviction in the second case came as a result of a negotiated disposition involving appellant’s plea of guilty to 2 of 10 counts and admission of several charged enhancements. His appeal involves mainly the issue of whether the trial court erred in refusing, in the first case, to rehear a Penal Code section 1538.5 motion it had previously denied in that case. We conclude that court erred in refusing to hear a motion alleging ineffective assistance of counsel affecting the result of the first motion to suppress. In light of our ruling, we do not address the second issue appellant raises regarding the sentence imposed on him after his two convictions.
We shall hereafter refer to this case (No. 908439) as “the first case” and case No. 908705 as “the second case.”
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The First Case.
On February 26, 2006, Clearlake Police Officer Piccinini, working in conjunction with the Lake County Narcotics Task Force, was attempting to locate appellant’s vehicle. At about 9:30 p.m. that evening, he observed that vehicle run a stop sign and he stopped it. When he contacted appellant, the officer noticed symptoms that suggested appellant might be under the influence of a controlled substance. Another officer, a sergeant, arrived and asked appellant if they could search his vehicle; appellant responded in the affirmative and, during the subsequent search, the police discovered $160 in 20 dollar bills.
A third officer arrived at the scene and examined appellant for symptoms of being under the influence of narcotics. He detected such symptoms, specifically symptoms of being under the influence of a central nervous system stimulant. Appellant was arrested for a violation of Health and Safety Code section 11550. After waiving his Miranda rights, appellant told the officers that he had used methamphetamine about an hour and a half earlier.
After arriving at a Lake County jail, appellant was advised that it was a felony to bring drugs into a jail, and that he had an opportunity to turn over any drugs; he then removed three baggies of methamphetamine from the rear of his underwear.
On May 4, 2006, the Lake County District Attorney filed its information in the first case, charging appellant with three counts: (1) delivery or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); (2) possession of methamphetamine for sale (Id., § 11378); and (3) under the influence of a controlled substance, a misdemeanor. (Id., § 11550, subd. (a).) The information also alleged a prior strike, namely, involuntary manslaughter, and that appellant had served a term in state prison. (Pen. Code, §§ 1170.12, subd. (a)-(d); 667, subd. (b)-(i); 67.5, subd. (b).)
On May 8, 2006, appellant pled not guilty to all the charges and denied the special allegations.
On July 10, 2006, appellant’s counsel––then appointed counsel––filed a motion to suppress under Penal Code section 1538.5 (section 1538.5). The motion was opposed by the district attorney on July 28, 2006.
On July 31, 2006, the court heard appellant’s motion to suppress and denied it.
Trial commenced in the first case on February 21, 2007, with jury voir dire and the court’s denial of appellant’s Marsden and Faretta motions. (People v. Marsden (1970) 2 Cal.3d 118; Faretta v. California (1975) 422 U.S. 806.) However, the following day, the court permitted appellant to substitute retained counsel for his appointed counsel and the case was then reset for jury trial on March 20, 2007.
On March 14, 2007, the new counsel filed a second motion to suppress to be heard on the trial date. As discussed further below, that motion alleged that it was authorized under section 1538.5, subdivision (h), because the grounds for this subsequent motion were not raised the first time because of ineffective assistance of counsel.
The district attorney opposed the motion, contending that, under section 1538.5, subdivision (i), the court lacked jurisdiction to hear a second motion to suppress after denying an earlier one, and that there was neither new evidence presented or a showing of ineffective assistance of counsel.
On March 20, 2007, the trial date in the case was continued to April 3, 2007. On the same day, defense counsel renewed his notice of the second section 1538.5 motion, setting it for hearing one day before the new trial date.
On April 2, 2007, the court held a hearing to consider whether it would hear the second motion, and concluded it would not because the motion would entail relitigating issues already decided by it. In the course of so ruling, the court denied defense counsel’s request to call witnesses to establish the basis for his offer of proof regarding alleged ineffective assistance of counsel on the first motion to suppress.
Two days later, on April 4, 2007, appellant entered a “slow plea” to the first count of the information, with the court thus allowed to review the police report and documents relating to appellant’s prior conviction and prison term. On the bases of these, the court found appellant to be guilty of the first charged count, transportation of methamphetamine, and also found the prior strike and prison term allegations to be true. The remaining counts of the information were then dismissed.
As there was no preliminary hearing or trial in the second case, these facts are taken from the probation report.
On March 10, 2006, Lake County Narcotics Task Force officers, Clearlake police officers, and a Lake County Probation Officer served a search warrant at appellant’s residence. There, they discovered methamphetamine, hashish oil, hashish, and other drugs and drug paraphernalia, a scanner, and a folder containing police radio codes and frequencies. Appellant and two other adult residents of the premises were found to be under the influence of a controlled substance.
In addition to these other residents, three juveniles were also discovered to be living at appellant’s residence.
On May 4, 2006, the Lake County District Attorney filed a 10-count information, alleging principally drug possession and related charges against both appellant and one of the co-residents. That information also contained an allegation that, at the time of his arrest, appellant was released on bail on the first case. (Pen. Code, § 12022.1.) It also alleged the same enhancements as alleged in the first case.
On October 26, 2007, appellant, now represented by the same counsel appearing for him in the first case, pled guilty to two counts alleged in the second case, possession of methamphetamine (Health & Saf. Code, § 11377) and a misdemeanor count of possession of tear gas. (Pen. Code, § 12420.) He also admitted the charged enhancements.
C. Sentencing in Both Cases.
On November 9, 2007, the trial court denied appellant’s motion, made in the first case under People v. Superior Court (Romero) (1986) 13 Cal.4th 497(Romero), to strike the prior conviction allegation for purposes of the sentencing.
A week later, on November 16, 2007, the court denied probation and sentenced appellant to the midterm of three years for transportation of methamphetamine in the first case. (Health & Saf. Code, § 11379, subd. (a).) The court imposed a consecutive sentence of eight months for the felony count to which appellant had pled in the second case. That sentence was then doubled because of the prior strike pursuant to Penal Code section 1170.12, a one-year consecutive sentence imposed for the prison prior pursuant to Penal Code section 667.5, subdivision (b), and two additional years then added for the “on bail” enhancement. (Pen. Code, § 12022.1.) Appellant’s total sentence was, thus, ten years and four months.
On November 30, 2007, appellant filed timely notices of appeal in both cases.
III. DISCUSSION
As noted, appellant contends that the trial court erred in not hearing his section 1538.5 motion to suppress in the first case. Regarding the second case, he contends that, if his appeal in the first case is successful, his sentence in the two cases (specifically, the subordinate term imposed regarding the felony count in the second case and the denial of his Romero motion) must be reconsidered.
A. Appellant’s first motion to suppress.
We will begin with appellant’s July 10, 2006, motion to suppress, a motion as noted filed by his original, court-appointed, counsel. It argued that there had been no “probable cause” to stop appellant simply because he had allegedly made a “rolling stop” at a rural intersection. In support of this argument, appellant’s counsel attached copies of six photographs of the intersection taken from various angles. He also argued that, under the United States Supreme Court’s decision in Terry v. Ohio (1968) 392 U.S. 1, traffic stops are only permitted when the officer believes a crime may be, or has been, committed, and also limits the search of the driver and the vehicle to one for dangerous weapons, i.e., in order to secure the officer’s safety. Finally, he argued that, bearing in mind the stop was only for a minor traffic violation, it was unnecessarily prolonged, as it involved the arrival of two other officers, and it was only the third officer who concluded that appellant was under the influence of a controlled substance.
After an opposition was filed by the Lake County District Attorney, the court heard argument on the matter on July 31, 2006. At that hearing, there was testimony from two of the three officers involved in the stop and subsequent search of appellant and his vehicle, and the examination of him. In the course of the testimony of the first such witness, Officer Piccinini of the Clearlake Police Department, defense counsel got that officer to admit that on the night in question, February 26, 2006, he had received information from the Lake County Narcotics Task Force “regarding this defendant” and that he was “actually going out that direction to see where [defendant’s] vehicle was going.”
After further testimony from the officers involved in the stop, search, and examination of appellant and his vehicle, the court heard brief argument from counsel. One of the arguments made by appellant’s counsel was that, per the photographs submitted by him to the court (and admitted into evidence) and Officer Piccinini’s testimony, it would have been difficult for the officer to actually see appellant’s alleged “rolling stop” from the location he testified he and his police car were situated.
After that and responsive argument, the court denied the motion on the grounds that “Officer Piccinini’s testimony was credible that he did see the defendant fail to stop at a posted stop sign” which “constituted valid reason for the initial detention” which was not extended unreasonably because of the “consent search of the vehicle” and the fact that, to Officer Piccinini, appellant exhibited “repetitive speech and body movements.”
B. Appellant’s second motion to suppress.
As noted above, on February 22, 2007, while the court and the parties were in the process of picking a jury in the first case, appellant moved to substitute new, retained counsel; the court granted that motion and continued the trial date.
A few weeks later, on March 14, 2007, that counsel filed two motions, one to continue the trial date from the date then set, March 20, 2007, and the other the second motion to suppress. In support of the latter motion, new defense counsel submitted a declaration to the court stating that he had been advised that, on the night when appellant was stopped and then arrested, “there are at least two witnesses who saw the detention of defendant and if called to testify in court would testify that defendant made a full stop at the stop sign in question.” That declaration continued: “It is my opinion that in order to adequately litigate such a motion it would have been necessary to have an investigator observe and photograph the scene of the detention, and interview and subpena [sic] the civilian witnesses who observed the detention.”
The memorandum of points and authorities submitted in support of the motion stated that “defendant’s prior counsel did not call material witnesses to testify concerning the circumstances of the stop” and that these “witnesses . . . would testify that he did in fact stop at the stop sign.” As a result, that pleading continued, “an opportunity to litigate a motion to suppress did not exist due to ineffective assistance of counsel.” Appellant was, therefore, entitled to a rehearing on his motion to suppress pursuant to section 1538.5, subdivision (h), the memorandum concluded.
The district attorney’s office opposed the motion on the basis of the language of section 1538, subdivision (i), and argued that, pursuant to that provision and the case law under it, the court lacked jurisdiction to rehear the motion to suppress. In the course of so arguing, the prosecution stated that “new evidence is not a legitimate basis for a new hearing.”
On April 2, 2007, a court hearing was held on this renewed motion. The deputy district attorney restated her position that “the Court does not have jurisdiction to hear another motion to suppress.” Defense counsel than asked to call a witness, an attorney named David Markham, to testify “relative to previous counsel’s motion in order to urge the Court to find that there was IAC, so that [appellant] would be able to have this matter fully litigated.” The deputy district attorney objected, stating that “[e]ven if IAC was proven, I don’t think the Court would have jurisdiction still.” Both counsel then cited supporting authority to the court, appellant’s counsel relying on a case relied on by the Attorney General in his brief to us, our decision in People v. Sotelo (1996) 47 Cal.App.4th 264 (Sotelo). That counsel then argued to the court that his motion was indeed “different than the last motion . . . in two ways,” one of them being the “propriety of a threatened strip search” and the other being “whether or not Mr. Jones stopped at this particular stop sign in the city of Clearlake.”
Regarding the latter issue, defense counsel contended that “there was no investigation” by prior counsel, an issue that he was “prepared to establish . . . today through testimony” and that there were witnesses “who were right behind Mr. Jones . . . in the vicinity of where this stop sign is located . . . who will say that Mr. Jones came to a complete stop.” Finally, counsel argued that he was prepared to call an investigator, one Richard Biggs, who had gone to the site in question and would testify that “from where the officer was, he couldn’t see the stop sign or the limit line” and thus couldn’t tell if there had been a stop sign violation.
The court denied the motion on the basis that “this appears to be a re-litigation of an issue that’s previously been decided” and that “this motion is not timely filed because the Court previously heard and denied the suppression motion.” The court also denied defense counsel’s request to call the witnesses he had mentioned “as an offer of proof to lay some kind of a foundation for further review.”
C. The pertinent statutes and case law.
Section 1538.5, subdivision (h) provides: “If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.”
Section 1538.5, subdivision (i) provides in pertinent part: “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. . . . If the offense was initiated by indictment, or if the offense is initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. . . . The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.”
The issue this case poses is whether these statutory provisions, and the case law applying them, permit a second motion to suppress to be heard in the superior court on the basis that the first such motion was inadequate because (1) of the allegedly ineffective assistance of counsel and (2) it did not raise all the grounds of relief that could or should have been raised. Appellant contends that the “not aware of the grounds for the motion” language of subdivision (h) as well as pertinent case law allows him to refile such a motion on either or both of those two grounds.
The Attorney General’s brief summarizes the law on this subject thusly: “[S]ection 1538.5 does not prohibit defendants from making a new motion based upon grounds either unavailable or unknown to them at the time of their prior motions (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 611; see also Pen. Code, § 1538.5, subd. (h)), and a trial court has jurisdiction to hear second suppression motion when the defendant lacked the opportunity for a ‘full determination’ of the merits of his or her motion as originally made and noticed (People v. Brooks (1980) 26 Cal.3d 471, 474-478.) In Sotelo this Court approved of the principle set forth in People v. Superior Court (Corona) [(1981)] 30 Cal.3d 193, 200 [(Corona)] ‘“that if the ineffectiveness of counsel infected the first suppression hearing, the defendant cannot be said to have had opportunity for ‘full determination’ within the meaning of Brooks.”’ (People v. Sotelo, supra, 47 Cal.App.4th at p. 270.) [¶] In Sotelo this Court did not limit the propriety of a second suppression motion, due to the ineffectiveness of counsel in litigating the first motion, to findings of ineffectiveness made by an appellate court. As we understand Sotelo, a defendant is entitled to have a second suppression motion heard on the merits where he or she can show that (1) counsel was ineffective in the manner counsel litigated one or more of the grounds raised in the first motion, or (2) counsel was ineffective in not raising a particular ground in support of the motion.”
Thus, rather than supporting the “no jurisdiction” argument advanced by the prosecution below, the Attorney General argues only that appellant’s counsel, in his pleadings and at the April 2 hearing, “did not establish that [appellant’s first counsel] was ineffective in the manner in which he litigated the improper-detention ground in the first motion.”
We will return to that issue below, but first we must note that we agree with the Attorney General’s summary of what our decision in Sotelo did and did not hold. In that case, in an appeal by the People, this court reversed––with Presiding Justice Kline dissenting––a trial court’s grant of a second suppression motion brought by the defendant. (Sotelo, supra, 47 Cal.App.4th at pp. 269-274.) Our basis for so doing was that a second judge heard and granted the second suppression motion, and did so on precisely the same legal ground (satisfaction of the knock-notice principle) as an earlier trial judge who had denied the motion. Further, and as we expressly noted, with regard to the presentation of the knock-notice ground on the first motion to suppress, there was no contention that there was any ineffective assistance of counsel.
In so holding, we made clear that prior authority regarding a second bite out of the apple on motions to suppress established that there were and are exceptions to the broad, general rule of Madril v. Superior Court (1975) 15 Cal.3d 73, that a trial court’s initial determination of a motion to suppress “deprives that court of jurisdiction to reconsider the matter unless the People . . . seek to reopen the matter at trial upon a showing of good cause.” (Id. at pp. 77-78.) We then cited two cases, one from our Supreme Court and one from our colleagues in the Sixth District, both involving the alleged ineffective assistance of counsel regarding the first motion to suppress. The first such case was Corona, supra, 30 Cal.3d at pages 199-200. There, and as we noted in Sotelo, our Supreme Court held that an “exception to the Madril principle applied to a case where the defendant’s conviction had been reversed on the ground that he had, in the first trial, been denied effective assistance of counsel,” a finding which the Supreme Court noted affected “‘all the original proceedings, not just the trial itself, and by itself would warrant the determination that Corona should be entitled to assert anew his new constitutional rights under section 1538.5.’” (Sotelo, supra, 47 Cal.App.4th at p. 270, citing Corona, supra, 30 Cal.3d at p. 200.)
The Sixth District case we referred to in Sotelo was People v. Camilleri (1990) 220 Cal.App.3d 1199. There, that court held: “Where a pretrial suppression motion has been fully litigated, the superior court lacks jurisdiction to entertain a second pretrial suppression motion. Penal Code section 1538.5, subdivision (h), only permits a second suppression motion at trial on the limited bases of lack of earlier opportunity or newly discovered grounds. [Citations.] However, ‘if the ineffectiveness of counsel infected the first suppression hearing, the defendant cannot be said to have had opportunity for “full determination”’ of the grounds to suppress evidence. [Citation.] [¶] Regardless of the superior court’s jurisdiction to entertain a second pretrial suppression motion, defendant is entitled to assert on appeal that he was denied effective assistance of counsel on the first suppression motion. [Citation.]” (Id. at p. 1203.)
(See also, People v. Superior Court (Edmonds), supra, 4 Cal.3d 605, 611, and cf. People v. Moore (2006) 39 Cal.4th 168, 176.)
In light of these holdings, we reiterate that not only our decision in Sotelo but also all other pertinent precedent make clear that alleged ineffective assistance of counsel, if established, provides a basis for a second consideration of a motion to suppress under section 1538.5, subdivision (h) and is not barred by anything in section 1538.5, subdivision (i).
D. The issue of ineffective assistance of counsel.
As noted above, the Attorney General’s argument for affirmance is based, and based only, on the proposition that nothing in appellant’s second motion for suppression demonstrated that appellant’s first counsel “was ineffective in the manner in which he litigated the improper-detention ground in the first motion.”
But the reason for this is that the trial court refused to hear any such evidence, and indeed even refused to permit appellant’s retained counsel to make an offer of proof regarding the evidence he wanted to submit in support of his second motion to suppress. The dialogue between the trial court and that counsel at the end of the April 2, 2007, hearing was as follows:
“THE COURT: The objection to the Court hearing this motion is submitted. Most of what I just heard from you, Mr. Tulanian [appellant’s retained counsel], is stuff that I heard before when I heard the motion from [appellant’s first counsel]. [¶] Based upon that, this appears to be a re-litigation of an issue that’s previously been decided. I’ll find that this motion is not timely filed because the Court previously heard and denied the suppression motion.
“MR TULIANIAN: Would the Court at the proper time this afternoon give us an opportunity to call these witnesses as an offer of proof to lay some kind of a foundation for further review?
“THE COURT: I see no reason to do that, no.”
The Attorney General is thus both correct and incorrect in his contentions: true, there was no evidence that appellant’s first counsel “was ineffective in the manner in which he litigated the improper-detention ground in the first motion.” But the reason for this is that the trial court expressly refused to hear any such evidence.
As the law discussed above makes clear, this was error. We shall remand these cases to the trial court with instructions to hear the offer of proof that appellant wished to provide at the April 2, 2007, hearing in the first case. If, based thereon, the trial court finds there was prejudicial ineffective assistance of counsel in connection with the filing and presentation of the first motion to suppress, it should hear and determine the second motion to suppress. If it determines to deny that motion, the conviction would remain in place. If it determines to grant the second motion to suppress, the conviction in the first case should be vacated and that case reset for trial.
IV. DISPOSITION
Appellant’s conviction in case No. CR908439 is vacated and the case remanded to the trial court with instructions to proceed as indicated above with regard to the claim of ineffective assistance of counsel on the first motion to suppress. If the trial court ultimately vacates appellant’s conviction in that case, it should then consider anew appellant’s sentence in case No. CR908705.
We concur: Kline, P.J., Lambden, J.