People v. Thompson

Decision Date27 June 1990
Docket NumberB044511,Nos. B036100,s. B036100
Citation270 Cal.Rptr. 863,221 Cal.App.3d 923
PartiesThe PEOPLE, Plaintiff and Respondent, v. Billy THOMPSON, Defendant and Appellant. In re Billy THOMPSON on Habeas Corpus.
CourtCalifornia Court of Appeals Court of Appeals

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen. and Pamela C. Hamanaka, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Presiding Justice.

Defendant appeals from judgment entered on a plea of guilty to possession for sale of cocaine (§ 11351.5 Health & Saf.Code) and that it was a violation of section 1203.073(b)(5) Penal Code, and to possession of phencyclidine (§ 11377(a) Health & Saf.Code).

PROCEDURAL BACKGROUND

At the conclusion of the preliminary hearing, the prosecutor offered in evidence as exhibit 1, 21.5 grams of cocaine and 4 milliliters of phencyclidine. Defense counsel objected to their admission and moved to strike testimony relative to their being packaged for sale. The magistrate admitted the narcotics in evidence and denied the motion. The defense offered no evidence, and defendant was held to answer.

In superior court defendant moved to suppress the evidence under section 1538.5 Penal Code. The court ruled that defendant's objection to the admission of exhibit 1 in municipal court constituted a 1538.5 motion; deemed the motion to suppress made in superior court to be a renewed 1538.5 motion which did not entitle defendant to an evidentiary hearing, and the evidence on the special hearing to be limited to a review of the transcript of the preliminary hearing and any evidence which reasonably could not have been presented at the preliminary hearing; held that, because the evidence could have been adduced at the preliminary hearing, defendant was not entitled at the special hearing to call witnesses to testify that he lived on the premises where he was arrested to show standing to challenge the search and seizure; found defendant lacked standing to bring the motion and denied the motion on that ground after finding the officer had no right to enter the yard. Thereafter defendant changed his plea to guilty as charged.

STATEMENT OF FACTS

Three days before February 28, 1987, Officer Kiser received an anonymous tip from a prior arrest which stated there was narcotics activity in the location of 1210 West C Street in Wilmington. In response thereto, and about 7:30 p.m. on February 28, Officer Kiser, with his partner Officer Ortiz, was proceeding eastbound in the rear alley of 1210 West C Street when he observed a Hispanic male in the rear yard of that address; Officer Kiser recognized the man from a prior arrest and knew he did not live at 1210 West C Street, but lived at the Dana Strand Housing Projects four blocks away; the man looked in Officer Kiser's direction and immediately stepped back as if to step away from them.

The officers exited the police car and "hopped over" a three and a half foot chain link fence into the rear yard to approach the man; Officer Ortiz detained him. When Officer Kiser was about twelve feet into the backyard, he saw to the left a chicken coop, two people in it and a flashlight beam coming from the coop; "[He] thought maybe burglars were back in the chicken coop," and walked around the rear garage to the chicken coop which had no rear door; he observed defendant and a female peering into a bag; they did not see him approach until he was at the doorway of the chicken coop, then he illuminated the bag with his flashlight and saw defendant and the female seated, peering into what appeared to be a cloth bank bag held by defendant; Officer Kiser looked down on them, could see into the bag because it was lower than his head level, and observed a glass pipe which is commonly used to smoke cocaine. Officer Kiser grabbed defendant and brought him out of the chicken coop to detain him pending investigation, then recovered the bag with the glass pipe. The bag also contained a metal box in which were three or four more glass pipes and other paraphernalia for smoking cocaine. As Office Kiser began to make a cursory search of defendant for weapons, defendant made the spontaneous statement, "I have all the dope on me"; he then placed defendant under arrest. Officer Kiser found on him numerous film containers containing a substance resembling cocaine, and an additional clear glass vial containing a liquid which appeared to be PCP, then placed him in custody. In the officer's opinion the narcotics were possessed for sale. A chemical analysis showed 21.5 grams of cocaine and 4 milliliters of PCP.

APPELLANT'S CONTENTIONS

Appellant argues error in the court's (1) ruling that he had made a 1538.5 motion before the magistrate and thus, was not entitled to an evidentiary hearing in superior court; (2) refusal to allow him to take evidence to establish that he had standing to challenge the search and seizure by offering testimony that the chicken coop was in the backyard of his own residence thus, he had a legitimate expectation of privacy in the chicken coop; (3) allowing the prosecutor to raise the issue of standing he having waived it by not raising it at the preliminary hearing; and (4) denial of his 1538.5 motion, because it was error to permit the prosecutor to argue lack of standing, and lack of standing was the only reason given for the denial the court having found that the officer had no right to go into the yard. He further contends that he was denied effective assistance of counsel because counsel at the preliminary hearing failed to present evidence that he resided on the premises on which the search and seizure took place which would have established his standing to renew the 1538.5 motion in superior court.

I MOTION TO SUPPRESS WAS MADE AT PRELIMINARY HEARING

Appellant's argument that at the preliminary hearing he made no motion pursuant to section 1538.5 Penal Code, because all he did was object to the admission in evidence of the narcotics, flies in the face of established authority.

When the prosecutor offered the narcotics in evidence at the preliminary hearing, defense counsel said:

"I object to the introduction of those items into evidence, your Honor.

"I move to strike all testimony relative to the items being packaged for sale. The grounds are here, clearly here. There is no basis for any of these people to be detained. There was no basis to detain the first man, or for the officer to go over to the chicken coop.

"There was no evidence of criminal activity here prior to the observations that the officer says he made.

"I also believe that the patdown, which really is the basis for the spontaneous remarks to which the officer testified that the defendant made, I believe the patdown was unjustified. There was no indication or basis for that at this point.

"So I think there is a case at Lorenzana at 9 Cal.3d, which I recall is fairly similar to this."

. . . . .

"MR. HORGAN: I think the initial entry was not proper, and anything that followed was not proper.

"THE COURT: Denied.

"People's 1 is admitted.

"MR. HORGAN: The motion is denied?

"THE COURT: Yes, sir."

"[T]he defendant need not follow strict procedures to bring a motion to suppress, but must make the basis for the motion clear, and must seek and obtain an unambiguous ruling on the motion." (Anderson v. Superior Court, 206 Cal.App.3d 533, 542, 253 Cal.Rptr. 651). Although couched in terms of an objection to the evidence and a motion to strike, the foregoing establishes that, indeed, a motion to suppress under section 1538.5 was made at the preliminary hearing. The traditional procedure of objecting to the admission of evidence to challenge the legality of a search and seizure has been held to constitute a motion under section 1538.5 (People v. O'Brien, 71 Cal.2d 394, 403, fn. 5, 79 Cal.Rptr. 313, 456 P.2d 969; People v. Williams, 9 Cal.App.3d 565, 569-570, 88 Cal.Rptr. 349), as has a motion to strike ( People v. Triggs, 8 Cal.3d 884, 887-888, fn. 2, 106 Cal.Rptr. 408, 506 P.2d 232). Based upon our review of the transcript of the preliminary hearing, we conclude that by putting in issue the legality of the initial entry to the premises, the detention of both men, and the patdown by way of objection to the admission in evidence of the items seized and a motion to strike testimony relative to their being packaged for sale, clearly stating his grounds therefor and seeking and obtaining a ruling by the court, defendant made a 1538.5 motion. The court properly deemed the motion before it to be a renewed 1538.5 motion.

II NO NEW EVIDENCE COULD BE TAKEN AT SPECIAL HEARING

Having made a 1538.5 motion at the preliminary hearing, defendant was not entitled to an evidentiary hearing on his renewed motion at the special hearing in superior court and could take no evidence thereon, for the "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...." (§ 1538.5, subd. (i), Pen.Code; Anderson v. Superior Court, 206 Cal.App.3d 533, 544, 253 Cal.Rptr. 651; People v. Ramsey, 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309.) Thus, defendant's offers to testify, or have his mother testify that he lived in the house on the premises where he was found in the chicken coop and arrested, were properly rejected by the court. Clearly, evidence that defendant lived on the premises could "reasonably have been presented at the preliminary hearing." (§ 1538.5 subd. (i), Pen.Code.) As suggested by the court, defendant could have testified at the preliminary hearing that he lived in the residence but, as was his right, he elected not to do so thus, Officer Kiser ...

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