People v. Torres

• Decision Date: 21 October 2010
• Docket Number: No. G042010.,G042010.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alfredo Torres TORRES, Defendant and Appellant.

188 Cal.App.4th 775

116 Cal.Rptr.3d 48

10 Cal. Daily Op. Serv. 12,296

2010 Daily Journal D.A.R. 14,808

2010 Daily Journal D.A.R. 16,124

The PEOPLE, Plaintiff and Respondent,

v.Alfredo Torres TORRES, Defendant and Appellant.

No. G042010.

Court of Appeal, Fourth District, Division 3, California.

Sept. 21, 2010.

As Modified on Denial of Rehearing Oct. 21, 2010.

**51 Michael Ian Garey, Santa Ana, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

*780 OPINION

IKOLA, J.

Defendant Alfredo Torres Torres challenges his convictions for various drug-related offenses, possession of a firearm by a felon, and misdemeanor driving without a valid license. Before defendant pleaded guilty to all charges, the court denied his motions to set aside the information and suppress evidence. In each motion, defendant contended drugs seized from his truck and other evidence were the inadmissible fruits of an illegal traffic stop and inventory search. We agree, and reverse.

Initially, defendant is entitled to separate review of the denials of his motion to set aside and his motion to suppress. We publish to reaffirm this established proposition because neither party was able to find a case on point. We also clarify that each motion must be reviewed on the record as it existed when the court decided the motion.

Turning to the merits, the inventory search was unlawful because the prosecution did not show the police reasonably impounded defendant's truck pursuant to their community caretaking function. To the contrary, the record shows this was a pretextual inventory search conducted as a ruse for a criminal investigation. As such, and because no attempt has been made to justify the search as an investigatory search based upon probable cause, we reverse.

FACTS

The Impound and the Search

An Orange County Sheriff's deputy patrolling in the City of Anaheim pulled over a pickup truck which had made an unsafe lane change and failed to signal a turn. The driver, who was defendant, parked in a stall in a public parking lot near a restaurant and got out of the car. Defendant told the deputy he did not have a valid driver's license. The deputy obtained defendant's consent to search him, and found four cellular phones and $965. The deputy decided to impound the truck. He placed defendant in the back of the patrol car and waited for his partner to arrive. The deputy and his partner conducted an inventory search of the truck. They found 12 ounces of methamphetamine under the driver's seat and a pay/owe sheet in the back seat.

*781 Deputies later searched defendant's home pursuant to a warrant. They found $133,074 in cash, nearly three pounds of methamphetamine, some cocaine, narcotics trafficking equipment, and a rifle.

The First Motion to Suppress and the Preliminary Hearing

Before the preliminary hearing, defendant filed a motion to quash and traverse the search warrant and suppress evidence. **52 (Pen.Code, § 1538.5, subd. (f).) ¹ He contended the traffic stop was "clearly pretextual" and unreasonable; the impound and inventory search was "a ruse" and unlawful; and the search warrant was "tainted" by the unlawful detention and search.

The court denied the motion after hearing testimony at the preliminary hearing. The deputy testified he had told defendant he would cite defendant for driving without a valid license (Veh.Code, § 12500, subd. (a)) and impound the truck pursuant to Vehicle Code section 14602.6, subdivision (a)(1) (authorizing impoundment of vehicles being driven by unlicensed drivers). The deputy testified his department has a policy governing inventory searches: "[Y]ou can search the vehicle, if you are impounding it."

The deputy made several concessions on cross-examination, however. He conceded a narcotics officer had previously asked him to "develop some basis for stopping" defendant. The deputy agreed with defense counsel that he had decided to impound the truck "in order to facilitate an inventory search." And he agreed he was "basically using the inventory search as the means to go look for whatever narcotics-related evidence might be in the [truck]." He never started writing a citation for driving without a license.

The People filed an information against defendant, charging him with seven counts. Defendant was charged with two counts of possession for sale of methamphetamine (Health & Saf.Code, § 11378) and one count each of transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a)), possession of cocaine for sale (Health & Saf.Code, § 11351), possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of drug sale proceeds exceeding $100,000 (Health & Saf.Code, § 11370.6, subd. (a)), and misdemeanor driving without a valid license (Veh.Code, § 12500, subd. (a)). The People alleged defendant suffered a prior felony conviction for possession of a controlled substance for sale. (§ 1203.07, subd. (a)(11); Health & Saf.Code, § 11370.2, subds. (a), (c).)

*782 The Motion to Set Aside and the Renewed Motion to Suppress

Defendant moved to set aside the information. (See § 995.) He again contended the detention and search were unlawful and the search warrant was invalid. The court denied the motion. It noted: "[I]f there had been an inventory search that was in fact a pretext search, but it was otherwise established to be valid, the Court believes that the case law supports the validity of that search...."

Defendant renewed his motions to quash the warrant and suppress evidence. (See § 1538.5, subd. (i) [right to renew suppression motion].) The court conducted a hearing on the motion, at which the deputy provided additional testimony.

On direct examination, the deputy reiterated he pulled defendant over for traffic violations and impounded the truck when defendant admitted having no license. He further testified his department has a policy giving an officer discretion to impound a vehicle driven by an unlicensed driver. The department trained him to exercise his discretion based on several factors: "Depending on the person, if they have ever been issued a license or not. How long they have been in the country," as well as "for safety reasons. I wouldn't want the person who doesn't have a license to get back into the vehicle after I issued them a citation[, with] [m]e leaving the vehicle in their control." He stated he **53 applied these factors in deciding to impound defendant's truck. He also claimed he filled out a "C.H.P. 180" form detailing the inventory.

On cross-examination, the deputy again made several concessions. He conceded another officer had filled out the C.H.P. 180 inventory form—his testimony that he had done so personally "was wrong." He conceded he did not cite defendant for driving without a license. And he again agreed he made the impound decision "in order to facilitate an inventory search" to "look for some legal basis to try to search the [truck]" "for whatever narcotics-related evidence might be in the [truck]." The deputy also agreed he omitted any reference to the narcotics officer in his police report because he "believed at that time that [he] could write [his] police report to make it look like this was just a traffic stop and that nobody would ever find out that the narcotics officer had actually given [him] some kind of a suggestion."

The court denied the motions. It acknowledged defendant's argument would be "right if the only evidence [about the deputy's decision] is hey, I'm going to impound this thing because I want to look for drugs with no other valid reason. [¶] But both of you [defense counsel and the deputy] went *783 back and forth on this. [¶] And the officer did render to the court independent reasons, nonpretext in nature, which explain why he would impound [and] inventory."

Defendant pleaded guilty to all counts and admitted the prior felony conviction. The court sentenced him to a total term of three years in state prison.

DISCUSSION

Defendant May Separately Appeal from the Denials of Both Trial Court Motions

Defendant seeks separate review of the denials of his motion to set aside and his renewed motion to suppress. The Attorney General contends defendant is entitled to appeal only the denial of the renewed motion to suppress, noting this court already denied writ review of the denial of the motion to set aside. And the Attorney General asserts "[a]ppellant has cited no authority, and respondent has found none, that would allow, much less require, this Court to separately review the orders ruling against appellant on the search and seizure issues." To resolve this dispute, we begin with a short recap of search and seizure procedural law.

At the preliminary hearing, a defendant may move to suppress evidence obtained from an illegal search or seizure. (§ 1538.5, subd. (f).) But doing so will not preserve the issue for appeal. ( People v. Lilienthal (1978) 22 Cal.3d 891, 896, 150 Cal.Rptr. 910, 587 P.2d 706 ( Lilienthal ).) To do that, the defendant may renew the motion to suppress in the trial court, where he is entitled to a hearing de novo. (§ 1538.5, subd. (i).)

The defendant may also preserve a search and seizure challenge for appeal by moving to set aside the information for lack of probable cause. (See § 995, subd. (a)(2)(B) [motion to set aside], see also § 1538.5, subd. (m) [despite guilty plea, defendant may challenge conviction arising from an illegal search or seizure if issue raised in a motion filed pursuant to "this section [or] Section[ ] 995"].) The California Supreme Court has rejected the claim that search and seizure issues "must be raised in the superior court by a motion to suppress rather than a section 995 motion." ( Lilienthal, supra, 22 Cal.3d at p. 896, 150 Cal.Rptr. 910, 587 P.2d 706.) "Although a defendant has the right to a de novo hearing...