People v. Cagle

• Decision Date: 10 November 1971
• Docket Number: Cr. 4602
• Citation: 98 Cal.Rptr. 348,21 Cal.App.3d 57
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Deborah Lorraine CAGLE, Defendant and Respondent.

Page 348

98 Cal.Rptr. 348

21 Cal.App.3d 57

The PEOPLE of the State of California, Plaintiff and Appellant, v. Deborah Lorraine CAGLE, Defendant and Respondent.

Cr. 4602.

Court of Appeal, Fourth District, Division 1, California.

Nov. 10, 1971.

[21 Cal.App.3d 59] Cecil Hicks, Dist. Atty., and Michael R. Capizzi and Oretta D. Sears, Deputy Dist. Attys., for plaintiff and appellant.

Philip Daigneault, Torrance, under appointment by the Court of Appeal, for defendant and respondent.

OPINION

AULT, Associate Justice.

Defendant Deborah Lorraine Cagle was charged in an information with possession of marijuana (Health & Saf.Code, § 11530). She entered a plea of not guilty and moved to set aside the information under Penal Code, section 995 and to suppress evidence under Penal Code, section 1538.5. The motions were argued and decided at a superior court hearing on December 31, 1970. The court denied the motion to set aside the information, granted the motion to suppress evidence and ordered the case dismissed pursuant to Penal Code, section 1385. The People appeal as permitted by Penal Code, section 1238(7).

The record before us is a sloppy one from beginning to end. Reference to the superior court file has failed to clarify it. On appeal, both parties assume the motion to suppress was heard and determined in the superior court on the testimony of one witness, called by the defendant, and the transcript of the testimony taken at the preliminary hearing. The assumption is not supported by the record.

A motion to suppress evidence is a de novo hearing in the superior court (Pen.Code, § 1538.5(i)). The transcript of the testimony taken at the preliminary examination is not ipso facto admissible at the superior court hearing. Absent a stipulation, neither the People nor the defendant can present the testimony taken at the preliminary examination at the superior court hearing unless the provisions of Evidence Code, section 1291 governing use of former testimony are met. (Hewitt v. Superior Court, 5 Cal.App.3d 923, 927--928, 85 Cal.Rptr. 493.) To have validity, an oral stipulation permitting the use of the preliminary transcript for the purpose of the superior court hearing should be entered in the court's minutes, or at least should be reflected in the transcript of the proceeding. (Thompson v. Superior Court, 262 Cal.App.2d 98, 105, 68 Cal.Rptr. 530.) Here, neither the minutes nor the transcript of the proceeding show such a stipulation was made. Furthermore, where such a stipulation is made, the record should positively reflect the superior court judge who ruled on the motion has read and considered the preliminary transcript. The de novo hearing requirements of Penal Code, section 1538.5 are not met if the superior court judge merely listens to argument of counsel which makes random reference to the preliminary transcript. It is a simple thing for the judge who has read and considered a preliminary transcript pursuant to stipulation to state that fact for the record. Assuming the parties stipulated the judge who ruled on the motion could read and consider the preliminary transcript, the record in this case gives no positive indication he did so.

The transcript of the hearing and the points and authorities filed in support and in opposition to the motion in the superior court disclose both sides referred in argument to the evidence introduced in the municipal court. From this, inferences may arise the preliminary transcript was properly before the court and that the judge had access to and considered the transcript. (See Amacher v. Superior Court, 1 Cal.App.3d 150, 155, 81 Cal.Rptr. 558.) We do not believe the inferences are of such compelling force a reviewing court is required to draw them, and we emphatically conclude the possibility of their existence should not be relied on by trial courts or attorneys as a substitute for sound practice.

If we indulge in the assumptions alluded to in the preceding paragraph, we are met with still further inadequacies in the record. The motion to suppress evidence was made orally, no grounds were specified and the items of evidence sought to be suppressed were not identified in any manner. Other than to observe that Penal Code, section 1538.5(a) sets forth the grounds upon which a motion to suppress evidence may be made, and to comment that every motion should state the grounds upon which it is made (See Thompson v. Superior Court, supra, 262 Cal.App.2d 98, 103, fn. 3, 68 Cal.Rptr. 530), as well as the records relied upon to support it, we pass over the fact the record here contains no statement of the grounds upon which the motion was made or granted.

We meet a higher hurdle, however, when we find the motion failed to specify the items of evidence sought to be suppressed. The record shows a motion under Penal Code, section 1538.5 was made and granted. Nowhere are the items sought to be suppressed, or which were in fact suppressed, identified. (See People v. Superior Court, 10 Cal.App.3d 122, 126, 89 Cal.Rptr. 316; People v. Superior Court, 274 Cal.App.2d 228, 232, 78 Cal.Rptr. 830.) Reference to the preliminary transcript compounds the confusion. While several items of contraband were seized at the time defendant was arrested, and some were discussed by witnesses who testified at the preliminary hearing, nothing we can find in the transcript indicates any items of contraband were marked for identification, or received in evidence. We are further confused by the fact the briefs of both parties state several items of contraband (without identifying them) were suppressed at the preliminary examination. While our copy of the transcript indicates the magistrate discharged the codefendant Jeffers at the preliminary hearing, it does not show a motion to suppress evidence was made by either defendant, or that any evidence was in fact suppressed. We conclude either both counsel are in error or we have been furnished an incorrect copy of the record.

Despite the deficiencies in the record before us, and the assumptions we are required to make because of them, we have determined to decide the appeal on the merits. In so doing, we recite and consider the evidence introduced at both the municipal and superior court hearings in the light most favorable to the trial court's order, and under the well established rule our function is to determine whether substantial evidence supports it. (People v. Superior Court, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21.)

On September 29, 1970, at about 9:30 p.m., Deputy Marshals Ringler and Bamford went to the 31800 block on Eighth Street in South Laguna Beach to arrest a John Stewart Christenson or a David Stewart Christenson pursuant to two misdemeanor arrest warrants (non-appearance, Veh.Code, § 40508). The warrants gave the address of the person to be arrested as 31818 Eighth Street. The officers went to the first house in the block on the righthand side of the street. It was the wrong house and was in fact 31808 Eighth Street. Although the house numbers were plainly marked on the fascia board directly over the front porch entry, the officers testified they could not find any house numbers even though they shined their spotlight and flashlights around the house. ¹

Deputy Ringler went to the door of the house and his partner, Bamford, went to the side and rear to prevent anyone from leaving through a back door or window. Bamford, in fact, approached the rear bathroom, peered in the window and saw a hashish pipe on a chest directly below the window ledge. He also caught a glimpse of a human form in the bathroom-bedroom area. He testified he was unable to tell whether the form was male or female. Meanwhile, Ringler went to the door of the house and knocked. Jeffers, the codefendant who was discharged in the municipal court, came to the door. Ringler testified:

'He stated that he wasn't the subject we were looking for, that he did not know anyone by the name of the subject on the warrant and that this was a friend of his house and the only name he knew was Chris. I asked if Chris was home and he stated no, he was home by himself. I asked him to produce identification. At this time, he left the position at the door where we were standing conversing, went back towards the rear of the house and then returned with identification stating that he was, in fact, Jeffers.'

The house was in fact rented by a Christopher Friend, who was not the subject of the warrant, but the officers did not know this at the time. Jeffers and Ringler left the house for a few mintues to inquire of a neighbor across the street concerning the person named in the warrant. ² When they returned they went to a different door and talked for a while. Ringler looked through the kitchen window and observed the butts of three hand-rolled cigarettes in an ashtray on a table. Bamford returned to the front of the house and told Ringler he had seen someone in the bathroom-bedroom area. Ringler told Jeffers he was going to enter the house to find out two was hiding in the bathroom or bedroom. He testified the sole reason he entered the house was to serve the warrants and to ascertain whether the person seen through the bathroom window was the person named in the warrants. Jeffers protested the house didn't belong to him and stated he could not give permission to go in and look around. As he entered the living room, Ringler detected a faint smell of marijuana and saw the defendant Cagle come into the living room from the bedroom.

Although Ringler was satisfied the defendant was not the person named in the warrants, he asked for her identification. She said her purse was on the counter in the kitchen. Ringler went to the kitchen, took a look at the cigarette butts in the ashtray and then went to the kitchen counter. Here Ringler's testimony became confused. He first stated he saw a jar full of seeds and greenish-brown leafy material which resembled marijuana. The jar was lying in the...