People v. Kidd

• Decision Date: 16 May 2019
• Docket Number: E070996
• Citation: 36 Cal.App.5th 12,248 Cal.Rptr.3d 234
• Parties: The PEOPLE, Plaintiff and Appellant, v. Martell Shimon KIDD, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

36 Cal.App.5th 12

248 Cal.Rptr.3d 234

The PEOPLE, Plaintiff and Appellant,

v.Martell Shimon KIDD, Defendant and Respondent.

E070996

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

Filed May 16, 2019

Michael A. Hestrin, Riverside County District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.

Steven L. Harmon, Riverside County Public Defender, and Laura Arnold and William A. Meronek, Deputy Public Defenders, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

RAPHAEL, J.

After being charged with several felony offenses, defendant and respondent Martell Shimon Kidd was twice unsuccessful in having the evidence against him suppressed on motions brought pursuant to Penal Code¹ section 1538.5, first at the preliminary hearing and then after his arraignment on the information. He raised the suppression issue again, however, in a motion to set aside the information pursuant to section 995, which was heard by a different superior court judge. This time, Kidd was successful; the section 995 motion was granted on the ground that the evidence against him should be suppressed as the product of a constitutionally unreasonable search and seizure, resulting in the dismissal of all charges.

In this appeal, the People argue that Kidd's section 995 motion was an inappropriate request to relitigate a matter that had previously been considered and decided by a different superior court judge, and that it should have been denied on that basis. We reject this argument, finding that the suppression issue was properly raised again in Kidd's section 995 motion. In the alternative, the People contend the motion should have been denied on its merits. We disagree, and affirm the trial court's ruling.

I. FACTUAL AND PROCEDURAL BACKGROUND

At Kidd's preliminary hearing, the prosecution presented evidence that in the wee hours of the morning on April 21, 2017, a law enforcement officer on patrol in the City of San Jacinto in a marked vehicle observed a car parked on a residential street with its front amber fog lights on. The officer could see two individuals sitting in the car. The officer decided to make contact with the individuals, explaining his reasoning as follows: "[T]here's a couple people inside of this car parked on the road at 1:30 in the morning. Maybe I should check to see if they're stranded, or what exactly they're doing. If—you know, who they are, if they live here."

The officer passed the car, made a U-turn, and parked about 10 feet behind the car, which had another car parked about 10 feet in front of it. The officer pointed two spotlights—one by his driver's side mirror, the other on the overhead light bar—at the occupied car, and then exited his patrol vehicle.

As the officer approached the driver's side of the car, he smelled a strong marijuana odor, apparently coming from the car. When the officer reached the driver's window, he shined his flashlight in the car and asked the occupants what they were doing. Kidd was in the driver's seat. The officer observed that the passenger was attempting to conceal some bags of what he suspected to be marijuana. The officer asked if either of the men were on probation or parole, and Kidd said that he was on probation.

The officer directed the two occupants to exit the car and to sit in his patrol vehicle while he verified Kidd's probation terms. While the officer did so, Kidd spontaneously told the officer that there was a firearm inside the car's center console.

The officer confirmed that Kidd was on probation and that he was subject to a search condition. The officer then searched the car and discovered marijuana, later determined to total 26 ounces, in several different packages; a digital scale; a pistol with the serial number scratched off; a loaded magazine for the pistol; and 142 pills later identified as Alprazolam. The officer arrested Kidd and impounded the evidence.

Kidd was arraigned on a felony complaint charging him with several felony offenses based on the evidence recovered from the search, as well as several recidivism-based allegations. He filed a motion to suppress the evidence pursuant to section 1538.5, which was heard at the preliminary hearing. The magistrate (Judge Randall D. White) denied the motion to suppress and held Kidd to answer on two felony counts and one misdemeanor. The magistrate made no express findings of fact in connection with the denial of the motion to suppress.

After Kidd was arraigned on an information filed after the preliminary hearing, he filed another motion to suppress, as authorized by section 1538.5, subdivision (i). At the special hearing on the motion, neither party presented any additional evidence. The trial court (Judge Mark E. Johnson) denied the motion.

Subsequently, Kidd brought a motion to dismiss pursuant to section 995, again arguing that the evidence against him should be suppressed. The trial court (Judge Jorge C. Hernandez) noted that it had reviewed the preliminary hearing transcript, as well as the parties' briefing. After hearing argument from the parties, the trial court granted the motion. The People appealed, as authorized by section 1238, subdivision (a)(1).

II. DISCUSSION

A. Standard of Review

" ‘In a proceeding under section 995, the superior court's role is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a judgment.’ " ( People v. Magee (2011) 194 Cal.App.4th 178, 182, 123 Cal.Rptr.3d 689 ( Magee ), quoting People v. McDonald (2006) 137 Cal.App.4th 521, 529, 40 Cal.Rptr.3d 422.) Thus, the superior court " ‘merely reviews the evidence; it does not substitute its judgment on the weight of the evidence nor does it resolve factual conflicts.’ " ( Magee, supra , at p. 182, 123 Cal.Rptr.3d 689.) In our review, "we, in effect, review the magistrate's decision directly, deferring to the magistrate's factual findings." ( People v. Hawkins (2012) 211 Cal.App.4th 194, 200, 149 Cal.Rptr.3d 469 ; accord Magee, supra , at pp. 182-183, 123 Cal.Rptr.3d 689 ["this court ‘must draw all presumptions in favor of the magistrate's factual determinations, and we must uphold the magistrate's express or implied findings if they are supported by substantial evidence.’ "].) We exercise our independent judgment in determining whether the search or seizure was reasonable on the facts found by the magistrate. ( Magee, supra , at p. 183, 123 Cal.Rptr.3d 689.)

B. Analysis

The People argue that "since [Kidd] had already availed himself of a motion to suppress during the preliminary hearing and reconsideration of that motion to suppress under ... section 1538.5, subdivision (i), he had no right to re-raise the constitutionality of his detention in a motion to set aside the information under Penal Code section 995." We disagree.

Prior to 1967, when the Legislature enacted section 1538.5, a defendant had two methods of challenging before trial the admissibility of evidence obtained by a warrantless search and seizure: (1) a nonstatutory motion to suppress; and (2) a statutory motion pursuant to section 995 to set aside the accusatory pleading. ( People v. Laiwa (1983) 34 Cal.3d 711, 717, 195 Cal.Rptr. 503, 669 P.2d 1278 ( Laiwa ), superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223, 266 Cal.Rptr. 473.) "[W]hen the Legislature codified, expanded, and regulated the motion to suppress evidence on the ground of unreasonable search and seizure in the elaborate provisions of section 1538.5, it left intact the motion to set aside the accusatory pleading on the same ground under section 995." ( Laiwa , supra , at p. 717, 195 Cal.Rptr. 503, 669 P.2d 1278.) The Legislature's intent in this regard was unambiguously expressed in the statutory language of section 1538.5, which provides that "[n]othing in this section shall be construed as altering ... the procedure and law relating to a motion made pursuant to Section ... 995" (§ 1538, subd. (n)), and which includes section 995 in a list of "the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure" (§ 1538, subd. (m)). A defendant seeking to avoid the use of evidence obtained by an unreasonable search and seizure may therefore "move to set aside an indictment or information under section 995... or he may move to suppress the evidence by a motion under section 1538.5... [o]r he may, as here, use both methods of attack." ( Smith v. Superior Court (1978) 76 Cal.App.3d 731, 733, 143 Cal.Rptr. 109 ; accord Magee, supra , 194 Cal.App.4th at p. 182, 123 Cal.Rptr.3d 689 [" ‘If the defendant is unsuccessful [on a section 1538.5 motion] at the preliminary hearing, he or she may raise the search and seizure matter before the superior court under the standards governing a section 995 motion.’ "]; People v. Gephart (1979) 93 Cal.App.3d 989, 996-997, 156 Cal.Rptr. 489 ["Under the statutory scheme of ... sections 995, 999a, and 1538.5, an accused may have up to seven opportunities to challenge the validity of a temporary detention, arrest, or search and seizure," including a motion to suppress the evidence at the preliminary hearing pursuant to section 1538.5, subd. (f), a motion to set aside the information pursuant to section 995, and a special hearing pursuant to section 1538.5, subd. (i) ].)

The People's reliance on People v. Superior Court (Scofield ) (1967) 249 Cal.App.2d 727, 57 Cal.Rptr. 818 ( Scofield ) in support of a contrary conclusion is misplaced. In that case, arising from facts that predate the adoption of section 1538.5, the defendant brought a nonstatutory motion seeking to have search warrants quashed and seized property returned in the municipal court, which was denied. ( Scofield , supra , at p. 729, 57 Cal.Rptr. 818.) The defendant sought review of that ruling by means of a petition for writ of mandate to the superior court, which was considered by Judge Wapner, who issued written findings of fact and...