People v. Belleci, Cr. 17112

• Decision Date: 31 May 1978
• Docket Number: Cr. 17112
• Citation: 146 Cal.Rptr. 462,81 Cal.App.3d 392
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Phillip BELLECI, Defendant and Appellant.

Page 462

146 Cal.Rptr. 462

81 Cal.App.3d 392

PEOPLE of the State of California, Plaintiff and Respondent, v. John Phillip BELLECI, Defendant and Appellant.

Cr. 17112.

Court of Appeal, First District, Division 2, California.

May 31, 1978.

For Opinion on Hearing, see 157 Cal.Rptr. 503, 598 P.2d 473.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, B. E. Bergesen, III, Deputy State Public Defender, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

EATON, ^* Associate Justice.

This is an appeal from a judgment entered following appellant's plea of guilty to a violation of section 11378 of the Health and Safety Code, possession for sale of a controlled substance phencyclidine (P.C.P.). ¹

Appellant raises one issue: Is it proper for a sentencing judge to rely upon evidence which had been excluded from trial because of its having been seized in violation of defendant's rights under the Fourth Amendment. The issue is one of first impression in California state courts.

In an amended information filed on March 8, 1977, in the Superior Court of Santa Clara County defendant and appellant John Phillip Belleci was charged with possession for sale of phencyclidine on June 11, 1976 (count one) and on January 22, 1977 (count two) in violation of Health and Safety Code section 11378. Appellant pleaded not guilty and moved to suppress the evidence seized on January 22, 1977, pursuant to Penal Code section 1538.5. On March 28, 1977, the trial court granted the motion to suppress. Thereafter count two of the information was dismissed on the motion of the district attorney. On April 25, 1977, appellant withdrew his plea of not guilty to count one and pleaded guilty.

The matter was referred to the Adult Probation officer who subsequently filed a report which contained information concerning the facts surrounding the seizure of the count two material which the court had ordered suppressed. Appellant moved to strike this information and to resubmit the matter to the Probation Department for reconsideration without reference to the suppressed evidence.

The trial court denied the motion to strike and resubmit the probation report in its memorandum of decision filed May 31, 1977. The trial judge reasoned: "It is the view of this court that the probation report should draw on all information concerning every aspect of a defendant's life. The exclusionary rule serves its purpose when evidence is suppressed for trial. It seems illogical to believe that police officers will wantonly seize evidence in disregard of the constitutional rights of a defendant in the hope that the same defendant on some other occasion will be arrested by some other police department who will so respect his rights that a valid conviction will be obtained on this second offense and that the illegally seized evidence will be used at time of sentencing on this second offense. If a defendant's arrest record may be considered; if the constitutional taint is so attenuated that suppressed evidence can be considered at probation revocation and parole hearings, then why not at sentencing hearings itself (sic )?"

On June 16, 1977, the court denied probation and committed appellant to the California Youth Authority, explaining: "The Court is willing to state for the record as follows: That the Court would strongly consider allowing the defendant to remain in the local community and be sentenced to County Jail for an extended period of time but for the additional factor of the defendant's later involvement with controlled substances, as demonstrated by Count 2, indicating to the Court that the defendant is developing a history of criminality and that the more appropriate confinement, in view of that total history, both Count 1 and Count 2, the defendant's background and age, the Court would feel that the California Youth Authority would be a more appropriate sentence rather than a County Jail sentence."

Appellant was committed to the California Youth Authority. The trial court stayed the order of commitment and released appellant on his own recognizance pending the determination of an appeal taken to this court. On June 16, 1977, a timely notice of appeal was filed.

Suppression of Evidence

The Attorney General asserts that the evidence in question was not illegally seized. The People have no standing to raise the issue in this court on appellant's appeal. Where a motion to suppress is granted by the trial court, the prosecution may seek appellate review by petitioning for an extraordinary writ under Penal Code section 1538.5, subdivision (o ). (People v. Carrington (1974) 40 Cal.App.3d 647, 649, 115 Cal.Rptr. 294.) If the suppression order is followed by a dismissal, the prosecution may take an appeal from the order of dismissal. (Pen.Code, § 1238(a)(7); People v. Carrington, supra, at p. 649, 115 Cal.Rptr. 294.) "(B)ut, once the case is dismissed, appeal from the dismissal is the sole remedy." (People v. Smith (1971) 17 Cal.App.3d 604, 605, fn. 1, 95 Cal.Rptr. 229, 230.) Here the People exercised none of the appellate rights available to them and therefore they cannot now, on a defendant's appeal from his conviction and sentence, seek review of the trial court's suppression order. ²

As will appear, the facts giving rise to the suppression of the evidence seized on January 22, 1977 are relevant to the issue before us, and we therefore set them forth in some length. Testimony regarding the seizure of evidence on January 22, 1977, was given at the preliminary hearing: ³ Between 9 and 10 p. m. on January 22, 1977, Officer Humberto Caro responded to 1481/2 Heller Drive in San Jose to investigate a "possible overdose." En route, he received a radio report that shots were being fired at fire engine and ambulance crews at that address. Approaching 1481/2 Heller, Caro observed a black sedan departing. At the scene Caro found a man shot and was told by several bystanders that a black Dodge Coronet occupied by two males had just driven away. Officer Caro radioed an all-points bulletin, indicating that "a possible black Dodge Coronet" was traveling from the crime scene.

About 10:40 p. m., Patrol Officer Gerald Wilson heard a call regarding gunshots at 1481/2 Heller Drive and the black Dodge Coronet. Fifteen minutes later he observed what appeared to be a black Dodge Coronet on Alum Rock Drive, one-half mile from Heller Drive. Wilson stopped the vehicle, but before he approached the driver of the vehicle he was able to tell that it was not a Dodge Coronet. Nonetheless, Wilson ordered appellant, the driver, and the passenger out of the car. Wilson directed the two men to the rear of the car and asked for their identification. Wilson could tell at this point that the two men were under the influence of something because they were unable to focus their eyes, obey the simplest of commands or to speak without slurring their words. ⁴

After detaining the two men about one minute, Wilson radioed for a description of the occupants of the Dodge. Two minutes later he received a physical and clothing description which fit the two men he had stopped. Wilson placed the two men under arrest for attempted murder. A search of appellant's left breast pocket disclosed an envelope containing approximately one gram of phencyclidine.

The lower court determined that since Wilson discovered as soon as he stopped the vehicle that it was not a Dodge Coronet, he had no right to further detain the occupants and should have approached the car to explain his mistake to the occupants and send them on their way. "The description of the suspects which matched the defendant's appearance came only after the illegal detainment." ⁵ If the suppression order were properly reviewable by this court on appeal, which it is not, it cannot be said that it is not supported by substantial evidence. ⁶

The Exclusionary Rule

The exclusionary rule which forbids the admission of illegally seized evidence in criminal trials is usually traced to Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 or to Boyd v. United States (1886) 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. (See United States v. Peltier (1975) 422 U.S. 531, 551, fn. 9, 95 S.Ct. 2313, 45 L.Ed.2d 374 (Brennan, J., dissenting).) Although the rule was not made applicable to state court proceedings until 1961 in Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, California adopted the rule in 1955 in the landmark case of People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905. The exclusionary rule is the sole technique enforcing the constitutional right to be free of unreasonable searches and seizures. ⁷ (Oaks, Studying the Exclusionary Rule in Search and Seizure (1970) 37 U.Chi.L.Rev. 665, 665-666.)

The purpose of the exclusionary rule is twofold: (1) to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so and (2) to preserve judicial integrity by relieving the courts of being compelled to participate in such conduct. (Dyas v. Superior Court (1974) 11 Cal.3d 628, 632, 114 Cal.Rptr. 114, 522 P.2d 674; Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155-156, 98 Cal.Rptr. 649, 491 P.2d 1; In re Jorge S. (1977) 74 Cal.App.3d 852, 858, 141 Cal.Rptr. 722; Governing Board v. Metcalf (1974) 36 Cal.App.3d 546, 549, 111 Cal.Rptr. 724.)

Judicial Integrity

The preservation of judicial integrity is termed the secondary policy underlying the exclusionary rule. (In re Martinez (1970) 1 Cal.3d 641, 654, 83 Cal.Rptr. 382, 463 P.2d 734. (Peters, J., dissenting), cert. den. 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88; Governing Board v. Metcalf, supra, 36 Cal.App.3d 546, 111 Cal.Rptr. 724.) The doctrine of judicial...