People v. Ramsey

• Decision Date: 08 August 1988
• Docket Number: No. F009554,F009554
• Citation: 203 Cal.App.3d 671,250 Cal.Rptr. 309
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Scott RAMSEY, Defendant and Appellant.

Page 309

250 Cal.Rptr. 309

203 Cal.App.3d 671

The PEOPLE, Plaintiff and Respondent, v. Michael Scott RAMSEY, Defendant and Appellant.

No. F009554.

Court of Appeal, Fifth District, California.

Aug. 8, 1988.

[203 Cal.App.3d 673] Chain, Younger, Lemucchi, Noriega, Cohn, Stiles & Rodriguez and Frank Butkiewicz, Bakersfield, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., J. Robert Jibson and Raymond L. Brosterhous, II, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ARDAIZ, Associate Justice.

In April 1987 a preliminary hearing was conducted in appellant's case. Appellant made a motion to suppress evidence pursuant to Penal Code section 1538.5 ¹ alleging that evidence was seized in violation of the knock-notice requirements of section 1531. The motion was denied and appellant was held to answer.

On May 14, 1987, an information was filed charging appellant with one count of possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378) and one count of possession of marijuana for sale (Health & Saf. Code, § 11359). It was further alleged appellant possessed 28.5 grams or more of methamphetamine within the meaning of section 1203.073, subdivision (b).

On May 15, 1987, appellant was arraigned, pleaded not guilty and denied the special allegation.

On July 13, 1987, appellant's section 1538.5 motion to suppress evidence and his section 995 motion were denied, and on August 20, 1987, this court denied the petition for writ of mandate. (Ramsey v. Superior Court, F008995.)

On September 23, 1987, appellant pleaded guilty as charged and was sentenced to three years in state prison. A timely notice of appeal was filed.

FACTS

At the preliminary hearing, Deputy Sheriff Conny Ericsson of the Kern County Sheriff's office testified that on February 25, 1987, at approximately 2:30 p.m., he and several other law enforcement officers arrived at the premises of 5909 Webb Way, Bakersfield, California, for purposes of serving a search warrant. While the other officers were standing around the corner so that they could not be seen, Deputy Ericsson, dressed in plain clothes, walked up to the door and rang the door bell.

After the second ring, Denise Ramsey opened the door. Ericsson identified himself as "Eric" and asked if Mike was home. Denise said he was sleeping. At that point, Deputy Stevens, who was wearing a vest with a sheriff's badge, walked up behind Ericsson.

Ericsson's preliminary hearing testimony as to the subsequent events is somewhat ambiguous, giving rise to the issue before us. On direct examination, he testified as follows:

"A. I first rang the doorbell and Mrs. Ramsey answered the door, and I asked for Mike. She told me that he was asleep. I was waiting for the other deputies that were with me to walk up behind me, and about that time I saw Deputy Stevens behind me, and that's when I told Mrs. Ramsey that I had a search warrant for the premises.

"...

"MR. PELTON [Prosecutor]: Q. Did you, after explaining that you had a search warrant for the premises and identifying yourself as a sheriff's deputy, did you enter the premises?

"A. Yes, I did." (Emphasis added.)

However, on cross-examination, Ericsson testified as follows:

"Q. Going back to the incident involving the search of the Ramsey residence, when you were there, you were dressed in plainclothes; is that right?

"A. That's correct.

"Q. Were the other deputies that were present in uniform or some of them also in plainclothes?

"A. Also in plainclothes, with vests on that says [sic ] Sheriff on it, and badges on the front.

"Q. Did you have that vest on and the badge?

"A. No, I didn't.

"Q. As you arrived at the residence, you walked up to the door dressed in this undercover capacity; is that right?

"A. Yes.

"Q. And you rang the doorbell, right?

"A. Yes.

"Q. According to the report, it says that, 'After the second ring, Denise Ramsey answered the door.' Is that correct?

"A. That's correct.

"Q. And that's what happened; is that correct?

"A. Yes.

"Q. You asked Mrs. Ramsey if Mike was home, and she told you that he was asleep; is that correct?

"A. Yes.

"Q. According to your report, you told her that your name was Eric; is that correct?

"A. Yes.

"Q. Your name is not Eric, though, right?

"A. No.

"Q. You lied to her, right?

"A. Yes.

"Q. And at that point, or at least according to your report, you said at that point, 'I observed Senior Deputy Stevens walk up behind me,' and you told Denise you were from the sheriff's department and that you had a search warrant for the premises; is that correct?

"A. That's correct.

"Q. And that's what happened, right?

"A. Yes.

"Q. According to your report, as you were telling Mrs. Ramsey this, you walked by her and down the hallway towards the master bedroom, right?

"A. Yes.

"Q. And that's what happened, right?

"A. Yes." (Emphasis added.)

Officer Ericsson further testified that he entered the master bedroom where appellant was sleeping. He woke appellant, advised appellant that he was from the sheriff's department and that he had a search warrant. A subsequent search resulted in seizure of various items of contraband.

Appellant was held to answer and on July 13, 1987, the court denied his section 1538.5 motion based on the evidence contained in the transcripts of the preliminary hearing. The issue herein turns on the alleged inconsistency in the testimony of Officer Ericsson as to whether he announced that he had a search warrant before or after he entered. The issue to be addressed is whether the magistrate made findings pursuant to section 1538.5, subdivision (i), and whether those findings are binding on review with respect to the validity of the search.

I Scope of Appellate Review of Denial of a Section 1538.5 Motion to Suppress

Effective January 1, 1987, section 1538.5, subdivision (i), was amended and now provides in pertinent part:

"If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing.... The superior 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 superior court as to evidence or property not affected by evidence presented at the special hearing."

Prior to this amendment, the provisions of section 1538.5, subdivision (i), of the statute provided:

"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 in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial.... The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing." ( § 1538.5, subd. (i), (1977 as amended)).

Thus, under the section's predecessor, the superior court was not bound by the determinations of the magistrate at the preliminary hearing and the issue was relitigated without restriction subject to narrow appellate review.

"[I]t is settled that in ruling on a motion under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court's express or implied findings if they are supported by substantial evidence." (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.)

In making its determination, the trial court followed a two-step procedure in ruling on the de novo suppression motion. First, the court determined the facts relating to the challenged search and seizure. (People v. Lawler (1973) 9 Cal.3d 156, 160 107 Cal.Rptr. 13, 507 P.2d 621.) Second, the trial court determined whether based on the facts, "the search was unreasonable within the meaning of the Constitution." (Ibid.) On review of the decision, the appellate court measured "the facts as found by the trier, against the constitutional standard of reasonableness." (Ibid.)

Notably, the de novo hearing conducted by the trial court was independent of the preliminary hearing. The preliminary hearing transcript was "not admissible at a de novo suppression hearing in the superior court absent a stipulation of the parties or the applicability of the hearsay exception for former testimony." (Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 94, 154 Cal.Rptr. 494.)

The partial effect of the de novo process was to duplicate litigation of issues and repeat testimony with the attendant result of consumption of precious court time that could be spent on unlitigated issues. Apparently sensing a need for reform, the Legislature amended section 1538.5, subdivision (i), limiting de novo review in the superior court where the motion was previously made at the preliminary hearing. The Legislative Counsel's Digest provides the following expression of purpose:

"If the motion [ § 1538.5 suppression motion] was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing, except as provided. The bill would provide that if the People object to the...