Wilder v. Superior Court

• Decision Date: 18 April 1979
• Citation: 154 Cal.Rptr. 494,92 Cal.App.3d 90
• Court: California Court of Appeals Court of Appeals
• Parties: William WILDER, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 4522.

Page 494

154 Cal.Rptr. 494

92 Cal.App.3d 90

William WILDER, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent The PEOPLE, Real Party in Interest.

Civ. 4522.

Court of Appeal, Fifth District, California.

April 18, 1979.

Walter L. Gorelick, Public Defender, Gerald F. Sevier, Asst. Public Defender, James T. Wilson, Senior Trial Atty. and Richard M. Macias, Deputy Public Defender, Visalia, for petitioner.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Maureen A. Daly, Deputy Attys. Gen., Sacramento, for real party in interest.

OPINION

GEO. A. BROWN, Presiding Justice.

Petitioner seeks a writ of mandate directing respondent court to vacate its order denying his motion to suppress evidence in a criminal action pending against him and to enter a new order granting said motion.

FACTS

Petitioner stands accused by information of receiving stolen property in violation of Penal Code section 496. Petitioner moved respondent court to suppress as evidence in the criminal action a vehicle sun roof, rearview mirrors and luggage rack.

On November 9, 1978, a de novo hearing upon the suppression motion was held before respondent court. The hearing was short. The transcript contains a total of only 11 pages. Petitioner testified that he was arrested in Delano on or about May 16, 1978, by Officer Stenback and thereafter the officer took his Ford van; he was "sort of forced to" drive the van to Visalia; Officer Stenback told petitioner that if petitioner did not drive the van back to Visalia the officer would impound it in Delano. When the van was returned to petitioner a few days later, a sun roof, rearview mirrors and luggage rack which were attached to the vehicle when it was taken were missing. To petitioner's knowledge, Officer Stenback did not have an arrest or search warrant at the time of the arrest.

Police Officer Jack Stenback testified that he arrested petitioner while petitioner was working on "the vehicle" at a body shop in Delano. Officer Stenback stated his probable cause for the arrest as follows: "I was assigned a case of threatening a witness with a victim being a Frank Henley, conducted my follow-up investigation, determined there was probable cause for the arrest." The arrest was based upon a complaint for intimidation.

Officer Stenback testified that he had petitioner drive the vehicle back to the Visalia Police Department; no one in Delano informed him that the van could not be kept at the body shop. The officer contacted the victims of thefts reported to the police. The victims came to the Visalia Police Department, where the van was parked, and identified items located on the exterior of the van as their property. The sun roof victim arrived at the police station within 20 minutes after the van had arrived; the luggage rack victim arrived about 30 minutes after the van.

Mr. Henley first supplied Officer Stenback information about the stolen items.

On November 29, 1978, respondent court denied petitioner's motion to suppress evidence.

DISCUSSION

In its return to the order to show cause and in its preliminary opposition to the petition real party relies extensively upon facts shown in the preliminary hearing transcript. Real party argues that it has the right to do so because its points and authorities before respondent court in opposition to the suppression motion referred to the preliminary hearing evidence. This position cannot be sustained. The preliminary hearing transcript is not admissible at a de novo suppression hearing in the superior court absent a stipulation of the parties or applicability of the hearsay exception for former testimony. (People v. Cagle (1971) 21 Cal.App.3d 57, 60, 98 Cal.Rptr. 348.) As real party asserted before respondent court, the parties did not stipulate that the court should consider evidence adduced at the preliminary hearing in deciding the suppression motion; it is now estopped to assert here the exact converse of that position. Moreover, the record does not support real party's contention that respondent court considered the preliminary hearing evidence; we cannot presume such error by the trial court simply because real party improperly relied upon the preliminary hearing evidence in its points and authorities. The preliminary hearing evidence was not before the respondent court and therefore it is not properly before us. (People v. Gibbs (1971) 16 Cal.App.3d 758, 761, 94 Cal.Rptr. 458; People v. Superior Court (1970) 3 Cal.App.3d 476, 482, fn. 2, 83 Cal.Rptr. 771.) It follows that the merits of this petition must be decided upon the evidence produced at the de novo hearing only. ¹

The issue before this court is the legality of the seizures effected by Officer Stenback without a warrant.

In this court real party may rely only upon the legal theories advanced by it before respondent court to justify police conduct. (People v. Miller (1972) 7 Cal.3d 219, 227, 101 Cal.Rptr. 860, 496 P.2d 1228; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 198-199, 101 Cal.Rptr. 837, 496 P.2d 1205; see People v. Shuey (1975) 13 Cal.3d 835, 847, 120 Cal.Rptr. 83, 533 P.2d 211.)

Before respondent court, real party expressly contended that the sun roof, mirrors and luggage rack were lawfully seized because they were in plain view at all times. We reject this contention. A plain view seizure must be reasonable (Guidi v. Superior Court (1973) 10 Cal.3d 1, 15, 109 Cal.Rptr. 684, 513 P.2d 908) and it is real party's burden to justify such seizure by proving by a preponderance of the evidence that it was constitutionally reasonable (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, fn. 2, 128 Cal.Rptr. 641, 547 P.2d 417; Guidi v. Superior Court, supra, 10 Cal.3d at p. 15, fn. 15, 109 Cal.Rptr. 684, 513 P.2d 908).

The van and everything on it, including the sun roof, mirrors and luggage rack, were seized by Officer Stenback in Delano. The officer seized the van by threatening to impound it if petitioner did not drive it to Visalia just as effectively as if he had had the van towed to Visalia. (See People v. Shuey, supra, 13 Cal.3d 835, 850, 120 Cal.Rptr. 83, 533 P.2d 211.)

Real party contends that Officer Stenback had probable cause to seize the van in Delano and that petitioner voluntarily consented to drive the van to Visalia. Those contentions were not raised before respondent court; ² therefore, real party is precluded from asserting them here for the first time.

We hold that seizure of the van in Delano was not constitutionally reasonable. The only evidence which supports a contrary conclusion is Officer Stenback's testimony that theft of a sun roof and luggage rack had been reported to the police and that he first received information about the stolen items from Mr. Henley. The information received from Henley, the source of Henley's knowledge and Henley's reliability are not established. Nothing but his naked conclusions appears in the record.

Real party appears to have urged, at least impliedly, before respondent court that Officer Stenback had probable cause to believe that the items seized at the Visalia police station were stolen property at the time of said seizures because the theft victims had identified the items seized prior to seizure thereof.

The victim identifications at the Visalia police station were clearly a fruit of the illegal seizure of the van in Delano. Absent the victim identifications, the Visalia seizures are supported only by Officer Stenback's testimony regarding reported thefts and information from Henley discussed above, and, therefore, were also unreasonable.

Real party contends that the evidence adduced at the suppression hearing and reasonable inferences arising therefrom support a...