People v. Lopez

• Decision Date: 18 December 1987
• Docket Number: No. D005258,D005258
• Citation: 242 Cal.Rptr. 668,197 Cal.App.3d 93
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Norma Dina LOPEZ, Defendant and Appellant.

Page 668

242 Cal.Rptr. 668

197 Cal.App.3d 93

The PEOPLE, Plaintiff and Respondent, v. Norma Dina LOPEZ, Defendant and Appellant.

No. D005258.

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

Dec. 18, 1987.

Susan Hildebrand, San Diego, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom and Deborah D. Factor, Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Defendant Norma Lopez appeals her jury-tried conviction of possessing 14.25 grams or more of phencyclidine (PCP) for sale. (Health & Saf.Code, § 11378.5; Pen.Code, § 1203.07, subd. (a)(4).) Lopez claims unlawful search and seizure and violation of her constitutional right to due process. We find no due process violation. However, we find the challenged search and seizure were the product of an illegal detention. We thus reverse the judgment.

I

About 7:40 p.m. on October 15, 1985, undercover narcotics officer Boyd and his partner saw Lopez and a companion sitting in a parked car in the parking lot of a public park in San Diego. The officers went up to Lopez's car. When Boyd saw an open beer can in Lopez's lap, he asked Lopez and her companion to get out of the car. After Lopez and her companion were outside the car, Boyd found a small jar containing liquid on the car's floor on the driver's side. After Boyd discovered the jar, Lopez said: "It's mine. I got it from a guy down the street. It's not water, it's gas." Boyd knew "water" was street terminology for PCP. He opened the jar, smelled the liquid and confirmed his suspicions it was PCP. Boyd arrested Lopez.

Police chemists later weighed the liquid before analyzing it and determined its weight to be 14.75 grams. Their tests showed the liquid contained PCP. Some of the liquid was lost or destroyed due to the testing process and PCP's volatile nature.

The remainder weighed less than 14.25 grams.

II

The People charged Lopez with unlawfully possessing 14.25 grams or more of PCP for sale. (Health & Saf.Code, § 11378.5; Pen.Code, § 1203.07, subd. (a)(4).)

Lopez moved under Penal Code section 1538.5 to suppress the jar containing PCP and all police observations made during and after her detention, asserting they were the products of an unlawful search and seizure. The court denied Lopez's motion to suppress.

Lopez also brought an in limine motion to suppress all testimony about the weight of the seized PCP. The court denied Lopez's in limine motion.

After trial the jury convicted Lopez of possessing PCP for sale and found its weight was 14.25 grams or more. The court denied Lopez probation and sentenced her to prison for the three-year lower term. Lopez appeals.

III

Lopez contends the court erred in denying her in limine motion to suppress all testimony about the weight of the PCP she was charged with possessing. Lopez asserts the People's failure to preserve the original quantity of PCP deprived her of the opportunity to verify its weight and present the verified evidence on her behalf and thus constituted a violation of her right to due process. We disagree.

Penal Code section 1203.07, subdivision (a)(4), prohibits probation for a defendant convicted of possessing for sale 14.25 grams or more of PCP. Thus, if the PCP seized from Lopez weighed less than 14.25 grams, probation was a possibility.

Due process requires the People disclose to a criminal defendant favorable evidence material to either guilt or punishment. (California v. Trombetta (1984) 467 U.S. 479, 480, 104 S.Ct. 2528, 2529, 81 L.Ed.2d 413, citing United States v. Agurs (1976) 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342; Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.) "[T]he appropriate test to apply in determining the materiality of nonpreserved [evidence] is the federal due process test set forth in California v. Trombetta." (People v. Trombetta (1985) 173 Cal.App.3d 1093, 1100, 219 Cal.Rptr. 637.) "There are just two key features to the standard devised in California v. Trombetta: (1) whether the evidence is material in the subjective sense, i.e., that it is exculpatory and was known to be so at the time it was lost, and (2) whether it can be replaced by other evidence, less satisfactory or not." (People v. Gonzales (1986) 179 Cal.App.3d 566, 572, 224 Cal.Rptr. 853.)

Lopez contends the exculpatory value of the weight of the seized PCP may have been apparent if the People had assured the PCP's availability for her independent weighing. However, such contention constitutes mere speculation unavailing under California v. Trombetta, supra, 467 U.S. 479, 104 S.Ct. 2528. Manifestly, the PCP's weight did not "possess an exculpatory value that was apparent before the evidence was destroyed." (Id. at p. 489, 104 S.Ct. at p. 2534.) On the contrary, the 14.75 gram weight was inculpatory. Thus, Lopez has failed to satisfy the first prong of the materiality standard of California v. Trombetta.

Lopez also fails to meet the second prong of the materiality test of California v. Trombetta. In California v. Trombetta, supra, 467 U.S. at page 490, 104 S.Ct. at page 2534, the United States Supreme Court noted the defendant had alternative means to replace the lost evidence. Here two police chemists testified a portion of the PCP was lost not in a conscious effort to suppress exculpatory evidence but instead because of normal and necessary testing and storage procedures. Lopez unsuccessfully attempts to distinguish California v. Trombetta on the ground the tests there included two independent measurements while the PCP seized from her was weighed only once before analysis. However, as the trial court correctly noted, like the defendant in California v. Trombetta, Lopez had alternative means to challenge "Well, clearly, according to your own witness, there is going to be, even under the best of circumstances, some, as [the witness] said, degradation, loss of the host material, the solution. So you have a reasonable concern, but the People have to--are faced with problems of preserving the evidence in any case as best they can, based upon the circumstances....

the accuracy of the testing methodology:

"Since it's possible the machine could be off, I assume the scale, or whatever method they used for weighing [the PCP], you can subpena that. You can subpena [the witness's] notes. You didn't ask [the witness] when he was on the stand how he went through the process of weighing [the PCP]. I assume you will do that.

"And it is not unlike the Trombetta situation, where you contest the machine and the operator of the machine. There is no indication that [the witness] would have any reason to prevaricate.

"...

"... So if you have some reason to believe [the witness] committed error, then you can attack it on that basis. But--And it may be something that you'd like to place before the jury by way of argument, but certainly as a matter of law I don't think ... you carried the burden of the motion. Denied."

The court properly denied Lopez's in limine motion to suppress testimony about the weight of the seized PCP.

IV

Lopez contends the court erred in denying her motion under Penal Code section 1538.5 to suppress the seized PCP and the police officers' observations during and after her detention, asserting the initial detention was unjustified and the subsequent search was thus illegal. Police originally detained Lopez because they thought she was in violation of Vehicle Code section 23223 by having an opened beer can in her car. Lopez asserts section 23223 did not apply because she was in her parked car in a parking lot in a public park, not on a public street. We agree.

Vehicle Code section 360 defines "highway" as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street."

Vehicle Code section 463 provides: " 'Park or parking' shall mean the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers."

Vehicle Code section 23223 provides:

"No person shall have in his or her possession on his or her person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed."

The issue is whether the parking lot of the public park where Lopez was detained was a "highway" for purposes of Vehicle Code sections 360 and 23223. We find the parking lot here was not a "highway."

In enacting Vehicle Code section 23223, the Legislature limited its application to vehicles on highways. ¹ Section 360's definition Other Vehicle Code provisions distinguish between highways and parking lots; distinctions which would be unnecessary surplusage if "highway" included "parking lot." Section 2805, subdivision (a), permits officers investigating vehicle thefts to inspect vehicles in designated areas specifically including both highways and parking lots. Section 21107.8 refers to "privately owned and maintained offstreet parking facilities." Section 22507.8, prohibiting unauthorized parking in spaces designated for disabled persons, also specifically applies "to all offstreet parking facilities owned or operated by the state, and to all offstreet parking facilities owned or operated by a local authority.... [And] to any privately owned and maintained offstreet parking facility." Section 22651 and 22654 concern the authority of peace officers to remove vehicles from highways and streets. Section 22651.3 deals with removal of vehicles from offstreet public parking facilities. Section 22652, authorizing removal of vehicles from spaces for the physically handicapped, contains specific provisions for privately and publicly owned or operated offstreet parking facilities.

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