Opinion
F075036
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AVILEZ, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Doris Calandra, Lewis A. Martinez, William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF163732A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Harry A. Staley (retired Judge of Kern Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal.Const.) and David R. Zulfa, Judges. Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Doris Calandra, Lewis A. Martinez, William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Staley presided over the motion to suppress and Judge Zulfa presided over the motion for discovery (Pitchess motion) and the sentencing hearing.
-ooOoo-
INTRODUCTION
Appellant/defendant Joseph Avilez was convicted of possession of methamphetamine for sale and other charges. The drugs were found after he was detained and searched by a deputy because she was informed by a sheriff's dispatcher that defendant was on probation and subject to a search condition. By the time of trial, however, the People conceded that defendant was not on probation or subject to being searched when he was detained. The court denied defendant's suppression motion and found the deputy relied on the dispatcher's information in good faith. The court also denied defendant's motion for discovery of confidential law enforcement records of the deputies involved in the detention, search, and arrest, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On appeal, defendant requests this court to review the deputies' confidential records to determine whether the court abused its discretion in denying his Pitchess motion for discovery.
Next, defendant argues the court improperly denied his suppression motion because the People failed to meet its burden of introducing evidence to establish the source of the dispatcher's erroneous information that he was on searchable probation.
Defendant also contends that certain enhancements must be stricken.
We find that defendant's Pitchess motion was properly denied. The People concede that certain enhancements must be stricken.
As for defendant's suppression motion, we find the deputy who searched defendant reasonably relied on the information from the dispatcher that he was on searchable probation. However, the People failed to introduce any evidence to show the error about defendant's probation status occurred because of "negligence ... rather than [a] systemic error or reckless disregard of constitutional requirements ..." as required by Herring v. United States (2009) 555 U.S. 135, 147-148 (Herring).) The People also failed to meet its burden of introducing evidence to establish the dispatcher's source for the erroneous information as required by the Harvey-Madden rule.
As we will discuss in issue I, post, People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d 1017 establish the evidentiary rules that the prosecution must satisfy to "prove the underlying grounds" for an arrest or search when the authority to do so has been transmitted to the arresting officers through police channels. (People v. Collins (1997) 59 Cal.App.4th 988, 993; People v. Brown (2015) 61 Cal.4th 968, 983.)
As we will explain, we will order a limited remand of the matter for the superior court to address the Harvey-Madden issue.
FACTS
The following is a brief summary of facts that were adduced at defendant's trial.
Around 10:00 p.m. on March 29, 2016, Deputy Rebecca Sanchez-Murillo and Deputy Angel Gonzalez from the Kern County Sheriff's Department observed defendant going through a trash can on the street. The deputies walked toward him. Defendant got onto a bicycle and pedaled in their direction. There was no headlight on the bicycle. Defendant was directed to stop because he was not using a headlight at night. Defendant stopped and truthfully identified himself. Defendant was asked if he was on probation or parole, and he said no. Defendant was asked if he would agree to a patdown search for weapons and he consented.
After the patdown search was conducted, a deputy contacted the dispatcher to run a record check on defendant's name. The deputy testified the dispatcher reported that defendant was on probation for a narcotics violation and was subject to being searched. Defendant was advised he was going to be searched and asked if he had anything illegal on him. Defendant replied he had methamphetamine in his pocket.
Defendant was searched, and 19 grams of methamphetamine were found in his pocket. Defendant's backpack was also searched, and it contained narcotics paraphernalia and indicia consistent with sales.
PROCEDURAL BACKGROUND
While the factual basis for this case appears fairly straightforward, there were several evidentiary issues that developed as the court conducted hearings on defendant's pretrial suppression and evidentiary motions, the People began to introduce the trial evidence, and defense made motions in the midst of trial in response to the testimony from prosecution witnesses.
We will review the relevant procedural history of the case. The preliminary hearing evidence
On March 29, 2016, defendant was arrested.
On June 20, 2016, the preliminary hearing was held. Deputy Sanchez-Murillo was primary witness for the People. She testified she had been a deputy for a little over three and a half years and had been trained in the academy about illegal narcotics and methamphetamine.
Deputy Sanchez-Murillo testified that on the night in question, she was standing outside her patrol car with other deputies and saw defendant looking through a residential trash can. She walked toward defendant and asked if he was on probation. Defendant said no. She later searched him and found a plastic container of suspected methamphetamine.
For purposes of the preliminary hearing, it was stipulated the contents tested positive for methamphetamine and weighed a total of 19.1704 grams.
Deputy Sanchez-Murillo testified that she also searched defendant's backpack and found brass knuckles, an operable digital scale, 11 plastic bags, eight syringes, and a black case with a used narcotic smoking pipe.
On cross-examination, defense counsel asked Deputy Sanchez-Murillo whether she searched defendant pursuant to being on probation. The prosecutor objected and said it was not relevant to the scope of the preliminary hearing. The court agreed, and defense counsel withdrew the question. The charges
On June 22, 2016, an information was filed that charged defendant with committing the following offenses on or about March 29, 2015: count 1, transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); count 2, possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 3, possession of metal knuckles (Pen. Code, § 21810); and count 4, misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), with enhancements pursuant to Health and Safety Code section 11370.2 and section 667.5, subdivision (b).
All further statutory citations are to the Penal Code unless otherwise indicated.
Defendant also was charged with count 5, misdemeanor scavenging from a container used for holding solid waste (Kern County Ordinance No. 8.28.050); and count 6, misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The People subsequently elected to only proceed on counts 1 through 4 and the attached enhancements, and the court granted the People's motion to dismiss counts 5 and 6.
Shortly before trial, the People filed an amended information that charged defendant with the same offenses and enhancements, and only corrected the dates of the prior conviction allegations.
DEFENDANT'S SUPPRESSION MOTION
While the dispatcher had reported that defendant was on probation and subject to being searched when he was detained in 2016, it turned out defendant's probation had been terminated in 2014, and he was not subject to a search condition when he was detained by the deputies.
On or about August 24, 2016, defendant filed a motion pursuant to section 1538.5 to suppress his statements and all evidence seized when he was detained and searched.
Defendant argued the deputies illegally detained, searched, and arrested him without a warrant or probable cause. Defendant argued that since he demonstrated a prima facie case that the government acted without a warrant, the search was presumptively unconstitutional, and the People had the burden to show legal justification for the search and seizure.
Defendant's motion further asserted the People had to produce the dispatcher who erroneously reported he was on probation. In doing so, defendant specifically cited to the Harvey-Madden rule:
"Police officers routinely make arrests based on information they received from other persons, such as victims, witnesses, informants, and fellow law enforcement officers. When a law enforcement officer or employee furnishes information to another who bases a detention, arrest, or search on such information, the prosecution must then, on request, show the basis of the former's information. (People v. Harvey, [supra,] 156 Cal.App.2d [at p.] 522; People v. Madden, [supra,] 2 Cal.3d [at p.] 1021; Remers v. Superior Court (1970) 2 Cal.3d 659, 667.) Such production is requested to be produced in the present case, insofar as such information was relied upon." (Italics added.)The People's opposition
The People filed opposition and conceded defendant's probation had been terminated at the time he was detained and searched in this case. The People attached as an exhibit a printout from "KERN CJIS." According to the People, this document showed that in case No. BF151256, defendant had been placed on probation, but his probation was terminated, and he was sentenced to two years in 2014.
There are documents in the appellate record that further confirm defendant was no longer on probation when he was detained and searched in this case in 2016.
According to the probation report, defendant was convicted in case No. BF151256 of violating Health and Safety Code sections 11359 and 11378. In 2014, he was placed on three years of felony probation. In July 2014, he violated probation, probation was revoked, and he was arrested on a bench warrant. In August 2014, he was sentenced to two years in jail.
At trial the People introduced documentary evidence to prove the prior conviction allegations. According to the minute orders from case No. 151256A, on May 2, 2014, defendant pleaded no contest to violating Health and Safety Code sections 11359 and 11378. On June 3, 2014, defendant was placed on probation for three years. On July 30, 2014, probation was revoked, and a bench warrant was issued because defendant violated probation. On August 11, 2014, defendant was arrested and taken into custody. On August 21, 2014, defendant admitted the probation violation. The court revoked his probation and did not reinstate it. The court sentenced defendant to two years, concurrent to the term to be served in case No. BF156517A, and he was remanded to the custody of the sheriff.
However, the People argued defendant's detention was reasonable because he was riding a bicycle without a headlight. The People further argued defendant was legally searched because Deputy Sanchez-Murillo was advised by the dispatcher that defendant was on probation and subject to a search condition. While the dispatcher's information was incorrect, the search was still valid because the deputies at the scene reasonably relied on dispatcher's information in good faith pursuant to United States v. Leon (1984) 468 U.S. 897 (Leon) and Herring, supra, 555 U.S. 135.
The People's opposition did not address the Harvey-Madden objection raised in defendant's motion, or the federal constitutional standards in Herring for whether the exclusionary rule applied in cases where an officer receives erroneous information from a dispatcher. Evidentiary hearing on suppression motion
On October 12, 2016, the court conducted an evidentiary hearing on defendant's suppression motion.
Deputy Sanchez-Murillo again testified that around 10:00 p.m. on March 29, 2016, she was on patrol in the 400 block of Sequoia Avenue. She saw defendant looking through a trash can on the sidewalk.
Deputy Sanchez-Murillo testified she was on foot, and her patrol car was two to three houses away. She started to walk toward defendant's position. Defendant got onto a bicycle and pedaled in her direction.
Deputy Sanchez-Murillo testified she noticed defendant's bicycle did not have any lights. She called out to defendant and stopped him, and said she needed to speak to him because he did not have a headlight on his bicycle. Defendant stopped and got off his bicycle.
Deputy Sanchez-Murillo asked defendant for his name and he truthfully identified himself. Sanchez-Murillo asked defendant if he was on probation or parole. Defendant said no. On cross-examination, Sanchez-Murillo could not recall if defendant said more than once that he was not on probation or parole.
Deputy Sanchez-Murillo asked defendant if she could conduct a patdown search for any weapons for her safety. Defendant consented. She conducted the patdown search and did not find any weapons.
Deputy Sanchez-Murillo testified she had been a deputy for four years. It was common in her experience for people to lie about their probationary status. Also, in her experience, she had never been told that she had received information from dispatch about an individual's record that turned out to be incorrect.
Deputy Sanchez-Murillo testified her patrol car had a computer that she could have used to check defendant's record to see specifically what he was on probation for. However, she was not near the vehicle. Instead, she used the radio she was carrying, contacted the dispatcher, and asked for a record check on defendant's name.
Deputy Sanchez-Murillo testified the dispatcher reported defendant did not have any warrants, "but he was on probation, searchable for narcotics and paraphernalia." The dispatcher did not give a specific case number or say when the probation ended, but the dispatcher told Sanchez-Murillo that defendant was on probation for "narcotics. That's all. Searchable for narcotics is what I was told."
Deputy Sanchez-Murillo advised defendant he was on probation, and she was going to search him. She asked if he had anything that he was not supposed to have on him. Defendant said he had "some meth" in his front pocket. Sanchez-Murillo could not recall if defendant again said he was not on probation.
Deputy Sanchez-Murillo searched defendant and found a container with suspected methamphetamine in his front pocket. She arrested defendant and placed him in her patrol car. She testified that she searched his backpack and it contained syringes, baggies, a scale, and metal knuckles.
Deputy John Puga also testified at the evidentiary hearing. Deputy Puga arrived at the scene as Deputy Sanchez-Murillo placed defendant in the patrol car. Puga testified Deputy Gonzalez was also present. Puga testified that he talked with defendant about contacting his wife to pick up his bicycle. Defendant said he could not remember his wife's number and said it was on his cell phone. Puga testified defendant gave his consent for Puga to use defendant's cell phone to call his wife. Puga activated the cell phone and saw text messages consistent with narcotics sales. Defendant later complained Puga looked through his cell phone without permission.
Deputy Gonzalez did not testify at the suppression hearing. Deputy Sanchez-Murillo did not refer to him in any way. As we will explain below, Deputy Gonzalez testified at trial and revealed for the first time that he was present, acted as Sanchez-Murillo's training officer that night, and participated in the detention, search, and arrest of defendant.
Prior to trial, defendant moved to exclude Deputy Puga's testimony about the text messages on the cell phone as inadmissible hearsay. In response, the prosecutor advised the court that he would not introduce evidence about the messages on defendant's cell phone at trial.
The People did not introduce any evidence about the source of the dispatcher's erroneous information, or how or why the erroneous information was provided to the dispatcher. The parties' arguments
At the conclusion of the testimony, the prosecutor argued Deputy Sanchez-Murillo "acted in good faith" when she searched defendant because she conducted a record check with her radio and relied on the information from the dispatcher that defendant was on searchable probation for narcotics.
Defense counsel argued defendant's person and backpack were illegally searched without a warrant, and his statements and the evidence should be suppressed. Counsel argued it was not reasonable for Deputy Sanchez-Murillo to ignore defendant's statements that he was not on probation or parole. Sanchez-Murillo could have used the computer in her patrol car to determine defendant's status. Instead, the dispatcher gave Sanchez-Murillo information "that was so vague, where she was not provided a case number, a date, or any type of information for an officer in her position to reasonably rely on that. And the reason it is so vague is because there is no evidence to suggest that he was even on probation or parole." It was not reasonable for Sanchez-Murillo to rely on such vague information to believe defendant was subject to a search condition.
The prosecutor replied that Deputy Sanchez-Murillo acted in good faith when she relied on the dispatcher's response to her request for a record check on defendant's name. The court's ruling
The court denied defendant's suppression motion: "There was probable cause for the searches and seizures set out in the evidence and moving papers." The court did not make any further findings.
PRETRIAL EVIDENTIARY HEARING
Prior to trial, the People moved to admit all of defendant's pretrial statements and requested a hearing pursuant to Evidence Code section 402 (the "section 402 hearing") to address any issues under Miranda v. Arizona (1966) 384 U.S. 436. Defense counsel's trial brief objected to the admission of his pretrial statements. The evidentiary hearing on defendant's statements
On November 7, 2016, the instant case had been assigned for trial. Prior to the beginning of the People's case-in-chief, the court conducted a section 402 evidentiary hearing on the admission of defendant's pretrial statements.
Deputy Sanchez-Murillo was the only witness. At this hearing, she testified she was working with Deputy Gonzalez when she saw defendant going through the trash can. Her testimony about the incident was virtually identical to that given at the suppression hearing.
Deputy Sanchez-Murillo testified she conducted a record check "with our dispatch," and she was told that defendant was on probation. Sanchez-Murillo advised defendant that he was on probation, and she was going to search him; she asked if he had anything that he was not supposed to have. Defendant said he had "meth" in his pocket. She directed him to stand up and searched him.
Deputy Sanchez-Murillo testified neither she nor Deputy Gonzalez drew their guns or used any physical force against defendant while he was sitting on the curb. Defendant had not been placed under arrest. He was not in handcuffs.
Deputy Sanchez-Murillo searched defendant and found methamphetamine on his person. She arrested defendant, placed him in handcuffs, and had him sit in the patrol car. Sanchez-Murillo searched defendant's backpack. The court's ruling
The court held defendant's statements at the scene were admissible and were not obtained in violation of Miranda. Defendant was not in custody because the deputies did not use force or draw their weapons, he was in a public place, and he was not restrained or in handcuffs.
TRIAL EVIDENCE
Deputy Gonzalez
On November 8, 2016, defendant's trial began with the People's first witness, Deputy Angelo Gonzalez, who had not previously testified in this case.
At trial, Deputy Gonzalez testified that around 10:00 p.m. on March 29, 2016, he was on patrol in a squad car with Deputy Sanchez-Murillo. Gonzalez was training Sanchez-Murillo. As her training officer, Gonzalez testified he was with her at all times, including when she contacted or spoke with a witness.
Deputy Gonzalez testified he was standing in front of the patrol car with Deputy Sanchez-Murillo when they saw defendant digging through a trash can about four to five houses away from them. Both deputies walked toward defendant and did not say anything to him. Defendant got on his bicycle and rode in their direction. He was carrying a backpack.
Deputy Gonzalez noticed defendant did not have a headlamp on his bicycle. Gonzalez told defendant to stop and he complied. Gonzalez testified he asked defendant to get off his bicycle and if he could search him. Defense counsel's objections
At this point, defense counsel objected to any further testimony from Deputy Gonzalez. The court held a brief sidebar conference then Gonzalez resumed testifying.
Deputy Gonzalez testified he asked defendant if he had anything illegal on him. Defendant said he had methamphetamine in his pocket.
Defense counsel again objected. The court excused the jury and conducted a hearing on the defense objection. The court's evidentiary hearing on Deputy Gonzalez's trial testimony
Outside the jury's presence, defense counsel objected that Deputy Gonzalez's trial testimony was inconsistent with Deputy Sanchez-Murillo's prior testimony at the pretrial evidentiary hearing because Sanchez-Murillo testified she contacted, questioned, and searched defendant.
The court agreed. It decided to resume the evidentiary hearing, outside the presence of the jury, on whether defendant's statements at the scene were admissible. The court directed the parties to question Deputy Gonzalez about what happened when defendant was detained and questioned.
In response to questions from the prosecutor and defense counsel, Deputy Gonzalez testified he was on patrol with Deputy Sanchez-Murillo in the same vehicle that night. Gonzalez and Sanchez-Murillo were together during the entirety of the encounter with defendant on the street. Gonzalez initially asked defendant to stop his bicycle. Sanchez-Murillo asked defendant if she could search him and whether he had any weapons. Defendant said he had knives in his front pockets.
Deputy Sanchez-Murillo previously testified at the pretrial hearing that defendant said he did not have any weapons, and she did not find any weapons when she searched him.
Deputy Gonzalez testified that Deputy Sanchez-Murillo conducted the patdown search. Sanchez-Murillo also contacted dispatch to conduct the record check and was told defendant was on probation. Gonzalez then told defendant that they were going to search him as part of his probation and asked defendant if he had anything illegal on him. Defendant said he had methamphetamine in his pocket. Gonzalez testified Sanchez-Murillo conducted the physical search of defendant and found the methamphetamine in his pocket. Gonzalez testified they both searched defendant's backpack.
Defense counsel asked Deputy Gonzalez to explain why there were inconsistencies between the incident report, Deputy Sanchez-Murillo's prior testimony at the section 402 hearing, and Gonzalez's trial testimony about the sequence of events.
Deputy Gonzalez testified his previous failure to clarify their activities was because Deputy Sanchez-Murillo "and I are considered one person since I am her field training officer." Gonzalez further testified: "When it comes to the field training program, whatever she does is the same as me doing it since we're considered one person out in the field." "The way our program works is the trainee and the trainer are considered one person out in the field. That is why when the report is written, both of the names are on the bottom of the report." The parties' arguments
Defense counsel argued the court should reconsider its prior evidentiary rulings because both deputies lacked credibility since Deputy Sanchez-Murillo's prior testimony was inconsistent with Deputy Gonzalez's trial testimony. Counsel further argued Gonzalez's explanations about the inconsistencies undermined Sanchez-Murillo's prior testimony at the hearing, that resulted in the court's denial of defendant's motion to suppress evidence obtained from the warrantless search.
Defense counsel stated the incident report about the arrest was written to reflect that Deputy Sanchez-Murillo asked the questions and conducted all the searches. Defense counsel had not received any pretrial discovery that defendant said he had knives in his pockets and the deputies found these weapons.
Defense counsel complained he did not know what else Deputy Gonzalez was going to testify about in front of the jury. Defense counsel intended to file a Pitchess motion for discovery of any complaints about dishonesty and misleading reports because both deputies had made inconsistent statements about the incident.
As we will discuss in issue I, post, defense counsel filed a Pitchess motion during trial for discovery of the personnel records of Deputies Sanchez-Murillo and Gonzalez for any reports regarding false statements, fabrication of witness testimony, false testimony, fabrication of probable cause, acts of moral turpitude, and any other evidence of or complaints of dishonesty. The court conducted an in camera hearing to review confidential records and advised the parties that it would not be disclosing any information.
The prosecutor replied there was no deliberate intent to confuse the defense, and the incident report was signed by both deputies, so it was not inconsistent with their testimony. The prosecutor acknowledged the report failed to clarify which deputy performed what act. The prosecutor had asked Deputy Sanchez-Murillo to testify at the section 402 hearing, so she could "practice" because she was a new deputy. The prosecutor argued the deputies did not give inconsistent testimony about defendant's conduct, statements, and the contraband found in his possession. The court's ruling at the resumed evidentiary hearing
The court stated that it would not change its prior ruling that defendant's statements at the scene were admissible and not obtained in violation of Miranda.
The court found that Deputy Sanchez-Murillo's prior testimony was consistent with Deputy Gonzalez's trial testimony regarding the sequence of events that happened: defendant was seen going through a trash can, he rode his bicycle toward the deputy, he stopped on request, he agreed to the patdown search for weapons, the dispatcher reported he was on probation and subject to a search condition, defendant said he had methamphetamine when advised about the search, and methamphetamine and other contraband were found.
However, the court further held that the People could not introduce any evidence that defendant said he had knives in his pockets or that the deputies found any weapons during the patdown search. The prosecutor said he never intended to introduce evidence about the knives. The court held defense counsel could introduce evidence about the knives if he felt it was relevant to impeach the deputies about what happened at the scene.
The court further stated that defense counsel could cross-examine the deputies about any inconsistencies between the incident report and their testimony. There was no discovery violation because both deputies signed the incident report. The court advised the prosecutor to have Deputy Sanchez-Murillo available to testify if called by the defense. Resumption of trial evidence
The trial resumed before the jury with Deputy Gonzalez's direct examination testimony. The prosecutor said he wanted to "step back" and review which deputy performed what act during the encounter.
In response to the prosecutor's questions, Deputy Gonzalez testified that when he worked with someone in the field training program, they were "side by side throughout the whole shift. I'm always with the trainee for any questions that they have and I observe everything that they do because I provide a grade for them at the end of the shift on how they did ...."
Deputy Gonzalez testified he was with Deputy Sanchez-Murillo when they saw defendant going through the trash cans, and they both walked toward him. Defendant rode his bicycle toward them. Gonzalez told defendant to stop, and Sanchez-Murillo conducted the patdown search for weapons. Gonzalez asked defendant if he had anything illegal on his person. Defendant said he had about half an ounce of methamphetamine in a clear container in his pocket. Sanchez-Murillo searched defendant. She found a clear container in defendant's front pants pocket, and it contained a clear baggie with what appeared to be methamphetamine. She also found a cell phone in one of his pockets.
Deputy Gonzalez testified that after they found the methamphetamine, Deputy Sanchez-Murillo arrested defendant, placed him in handcuffs, and seated him in the back of their patrol car. Both deputies searched defendant's backpack. It contained a pair of brass knuckles, three unused syringes, a digital scale, 11 plastic baggies, and a black case that had five unused syringes and a narcotics smoking pipe with burnt methamphetamine residue. The corner of one plastic baggie was torn, consistent with the bag being previously used to sell and dispense a smaller amount of methamphetamine.
Neither the People nor the defense called Deputy Sanchez-Murillo to testify at trial.
A criminalist testified the total weight of the methamphetamine found on defendant was 19.17 grams. Evidence of defendant's prior acts
Prior to trial, the People moved to introduce evidence of defendant's prior uncharged conduct as relevant to his intent. Defendant objected. The court conducted a separate evidentiary hearing, and Deputies Gonzalez and Shinn testified about the prior incidents with defendant. The court admitted the testimony that was later introduced at trial.
The People introduced evidence about defendant's two prior encounters with officers.
Deputy Gonzalez testified that around 10:50 p.m. on October 12, 2013, he was on patrol in Oildale when he came into contact with defendant. He was pushing shopping carts and had a backpack. Defendant consented to be searched. The backpack contained four syringes, two narcotics smoking pipes, three scales with white residue, a box with two more pipes and plastics bags of white substances consistent with methamphetamine, and 11 jars with marijuana. He also had $78 in cash. Defendant said the backpack belonged to him and the substances were methamphetamine. The methamphetamine and containers weighed 1.7 grams and 4.4 grams. Defendant was arrested that day for possession for sale.
Deputy Charles Shinn testified that on September 16, 2016, around 6:30 p.m., he observed defendant illegally driving a mini-bike motorcycle on the street without lights or a license plate. Shinn stopped and searched defendant and his backpack. He found a baggie that contained some pinkish pills, a baggie with suspected heroin, a container with about 1.9 grams of methamphetamine, about $323, a black replica handgun, a small vial of Narcan, a digital scale with white residue, and a cell phone. Defendant said: " 'The meth is mine.' " The cell phone was illuminated, and Deputy Shinn observed the following text message conversations displayed on the screen: "Is it too late to get one?" The response was, "One what?" The message in reply was, "o-z," which Shinn believed was short for an ounce. Defendant was arrested for driving on a suspended license, possession of methamphetamine for sale, and transportation for sale. Expert testimony
Deputy David Manriquez testified as the People's expert on narcotics sales. In response to a hypothetical question based on the facts of this case, Manriquez testified that based on his experience, a person who possessed approximately 19 grams of methamphetamine and the indicia in the backpack did so for purposes of sale.
Deputy Manriquez was also asked hypothetical questions based on the 2013 and 2016 prior incidents. In both situations, Manriquez testified the circumstances were consistent with the person possessing the methamphetamine and other drugs for purposes of sales for the same reasons. Defendant's trial testimony
Defendant testified he had prior felony convictions for illegal possession of dirks or daggers in 2006; unlawful possession of a firearm in 2014 (§ 12020, subd. (a)); and resisting arrest in 2014 (§ 69). Also, in 2014, he pleaded no contest to selling methamphetamine, but testified he was not selling drugs and entered the plea just to get out of jail.
Defendant was 35 years old and had been smoking methamphetamine for 22 years. His drug use had gotten worse over the years and he needed more methamphetamine to get high.
Defendant testified that prior to being stopped by the deputies, he had been digging through trash cans for about two hours to collect cans and scraps to exchange for cash. He regularly looked through trash cans for metal and used the money to pay for his drugs.
Defendant testified he was carrying his drugs and smoking pipe that night. He had just purchased 19 grams of methamphetamine for $170. He used that amount for himself because "I use a lot." He had the new syringes to give to family members who "shoot dope." He claimed the item described as metal knuckles was actually a belt buckle with loops for his belt. He had the digital scale to weigh the drugs he purchased from dealers because he did not trust them. He had just found the baggies in a brand-new box in a trash can.
Defendant disputed the testimony of the deputies about their two prior encounters with him, but testified he was not selling drugs on those occasions. Convictions and sentence
On November 16, 2016, the jury found defendant guilty as charged of count 1, transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); count 2, possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 3, possession of metal knuckles (§ 21810); and count 4, misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364). The court found the enhancements true.
On December 20, 2016, the court sentenced defendant to an aggregate term of 13 years eight months, to serve the first six years in jail custody and the remainder on mandatory supervision subject to certain terms and convictions.
DISCUSSION
I. Denial of Defendant's Pitchess Motion
As explained above, defendant filed a Pitchess motion in the midst of trial for discovery of any complaints against Deputies Sanchez-Murillo and Gonzalez for false testimony, false reports, dishonesty, or other acts of moral turpitude, and the reason Sanchez-Murillo failed the field training program. The court found good cause and conducted an in camera hearing with the custodian of records, and then advised the parties that it was denying defendant's motion for discovery.
On appeal, defendant and the People request the court review the confidential and sealed materials to determine whether the court abused its discretion when it denied defendant's motion for discovery.
A. Background
As explained above, defense counsel objected to Deputy Gonzalez's trial testimony and argued it was inconsistent with the incident report and Deputy Sanchez-Murillo's prior testimony at the pretrial evidentiary hearings. After the court conducted another section 402 evidentiary hearing on the admissibility of defendant's pretrial statements, it again held defendant's pretrial statements were admissible. The court also held that Gonzalez could continue to testify before the jury about the stop and search of defendant.
Defense counsel stated his intent to file a Pitchess motion as to both Deputies Gonzalez and Sanchez-Murillo.
Later during trial, defense counsel moved to cross-examine Deputy Gonzalez about the fact that Deputy Sanchez-Murillo did not successfully complete the field training program. The prosecutor objected. The court denied defense counsel's request:
"[B]ecause of the very limited information that we had about why she may or may not have been successful in the field training program, that under [Evidence Code section] 352 any probative value would be very slight, if at all. The potential for prejudice would substantially outweigh that."
Defense counsel argued the evidence was relevant because Deputy Gonzalez testified Deputy Sanchez-Murillo played a significant role in the detention and search of defendant. While the reason she failed the program was not known, "the jury should at least know she was unsuccessful in the fact that the likely assumption by the jury is going to be that she did, in fact, complete that assignment and is still probably working in a law enforcement capacity."
The prosecutor again argued the evidence was not relevant because they did not know why she failed the field training program: "It could have been along the lines of not being able to pass her firearms performance test or not being up to the physical standards required. We have no reason to believe that it had anything to do with this case or ill performance of her in this case." The court again denied defense counsel's motion.
B. Defendant's Pitchess Motion and Counsel's Declaration
On November 9, 2016, in the midst of trial, defendant filed a motion for discovery pursuant to Pitchess of the confidential personnel records of Deputies Sanchez-Murillo and Gonzalez for any reports regarding false statements, fabrication of witness testimony, false testimony, fabrication of probable cause, acts of moral turpitude, and any other evidence of or complaints of dishonesty.
Defense counsel's declaration in support of the motion set forth the alleged inconsistencies between the incident report and the testimony from the deputies at the pretrial evidentiary hearings and trial. In addition, counsel stated that he was advised by the prosecutor during trial that Deputy Sanchez-Murillo failed to successfully complete the field training program that she was involved in when defendant was detained and searched. Based on these factors, counsel asserted the court must review the records of both deputies and provide discovery of any relevant complaints or reports as requested in the motion.
The People filed a response and requested an in camera hearing for the court to review any confidential records.
C. The Court's Pitchess Hearing
On November 14, 2016, the court conducted a hearing on defendant's Pitchess motion outside the jury's presence.
The court advised the parties that there was good cause to conduct an in camera review of the confidential records of both deputies for all areas of veracity, dishonesty, and false reports. It denied defendant's request for disclosure of the sheriff's department's training manuals. Thereafter, the court cleared the courtroom and conducted an in camera and confidential hearing.
The clerk's transcript states that following the in camera hearing, the court ordered the transcript sealed, and advised the parties that defendant's motion for discovery was denied.
D. Analysis
Under the Pitchess decision and its corresponding statutory scheme, "a neutral trial judge ... examines the personnel records in camera ... and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations." (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) The superior court's determinations pursuant to a Pitchess inquiry are reviewed for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court properly conducted an in camera review, determined that no documents were subject to discovery, and ordered the preservation and sealing of the confidential materials it had reviewed. We have reviewed the in camera hearing and record under seal, and independently conclude the trial court did not abuse its discretion and properly denied disclosure as to all grounds raised in defendant's Pitchess motion.
II. Denial of Defendant's Suppression Motion
Defendant argues the court erroneously denied his motion to suppress evidence because he was not on searchable probation when he was detained, the People failed to meet its burden of proving the source for the dispatcher's erroneous information, and the exclusionary rule should apply because Deputy Sanchez-Murillo's reliance on the dispatcher's information was not reasonable under the circumstances.
Defendant's arguments are based on People v. Willis (2002) 28 Cal.4th 22 (Willis), which held the exclusionary rule applied if the person responsible for reporting an error about a search condition was another officer or someone who was an "adjunct" to law enforcement, such as a parole officer or police department clerk. (Id. at p. 45.) Defendant also relies on the Harvey-Madden rule, that establishes evidentiary rules the prosecution must satisfy to "prove the underlying grounds" for an arrest or search when the authority to do so has been transmitted to the arresting officers through police channels. (People v. Collins, supra, 59 Cal.App.4th at p. 993; People v. Brown, supra, 61 Cal.4th at p. 983.)
The People assert the court properly applied the "good-faith" exception to deny the suppression motion pursuant to Leon, supra, 468 U.S. 897 because it was reasonable for the deputy to rely on the information provided by the dispatcher in good faith, and the exclusionary rule was not applicable. The People acknowledge there was no evidence why the dispatcher provided erroneous information. As we will explain, however, the People incorrectly claim defendant failed to raise any Harvey-Madden objections before the superior court and forfeited that issue.
As we will explain, defendant's reliance on Willis is misplaced because it had been impliedly overruled in certain respects by the United States Supreme Court in Herring, supra, 555 U.S. 135, which held the exclusionary rule does not apply to exclude evidence "when police mistakes are the result of negligence ... rather than systemic error or reckless disregard of constitutional requirements ...." (Id. at pp. 147-148.)
As we will also explain, however, the People failed to meet the evidentiary burden raised by defendant's motion to suppress and failed to introduce any evidence to explain the source for the dispatcher's erroneous information in this case, and that the error was the result of negligence and not the result of "systemic error or reckless disregard of constitutional requirements," as required by Herring, supra, 555 U.S. at p. 147. We further find defendant preserved his objection under the Harvey-Madden rule for the People to introduce evidence for the source of the erroneous information, and the matter must be remanded.
A. The Warrantless Search
"A warrantless search is unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional requirement of a warrant. [Citations.]" (People v. Schmitz (2012) 55 Cal.4th 909, 916.) A search pursuant to a valid term of probation is an exception to the warrant requirement, and if established, requires no further justification. (People v. Woods (1999) 21 Cal.4th 668, 674-675.)
"Our review of issues related to the suppression of evidence seized by the police is governed by federal constitutional standards. [Citations.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1119.) "In reviewing the trial court's suppression ruling, we defer to its factual findings if supported by substantial evidence. We independently assess the legal question of whether the challenged search or seizure satisfies the Fourth Amendment. [Citation.]" (People v. Brown, supra, 61 Cal.4th at p. 975.)
Defendant's motion to suppress asserted that he was searched without a warrant; the prosecution did not contest that issue. At the hearing on defendant's suppression motion, Deputy Sanchez-Murillo testified that she asked defendant if he was on probation or parole, and he said no. She then contacted "dispatch" through her handheld radio, ran a record check, and was informed defendant "was on probation, searchable for narcotics and paraphernalia."
As the People conceded at the suppression hearing, defendant was not on probation or subject to any search conditions at the time of the detention. There was no evidence at the suppression hearing, or later in this case, that Deputy Sanchez-Murillo or her partner knew the dispatcher's information was erroneous at the time of the search.
On appeal, the People state the issue of whether defendant was on searchable probation in 2016 "was not litigated at the motion hearing," but acknowledge the appellate record shows that he was discharged from probation in 2014. The People also state that the trial court "did not need to - and this Court need not now -decide whether [defendant] was in fact on searchable probation," since the only issue was if Deputy Sanchez-Murillo relied on the dispatcher's information in good faith.
To the contrary, the prosecutor conceded defendant was not on probation at the time of the search. As we will explain, Herring held the source of dispatcher's erroneous information is the underlying basis to determine whether the exclusionary rule should apply in this case.
Nevertheless, the warrantless search of defendant was improper because he was not on probation and there was no other basis to search him. The disputed question is whether the exclusionary rule applies to exclude the evidence, or if People met the burden of showing it was reasonable for Deputy Sanchez-Murillo to rely on the erroneous information provided by the dispatcher about defendant's probationary status.
B. Leon and Evans
The United States Supreme Court has repeatedly found that "[t]he fact that a Fourth Amendment violation occurred - i.e., that a search or arrest was unreasonable - does not necessarily mean that the exclusionary rule applies. [Citation.] Indeed, exclusion 'has always been our last resort, not our first impulse,' [citation], and our precedents establish important principles that constrain application of the exclusionary rule." (Herring, supra, 555 U.S. at p. 140.)
In determining whether the exclusionary rule applied, the courts initially distinguished between whether the responsible party for the erroneous information was court personnel, which meant the exclusionary rule did not apply (Arizona v. Evans (1995) 514 U.S. 1, 15 (Evans)), or an "adjunct" of law enforcement, which meant the evidence was suppressed (Willis, supra, 28 Cal.4th at p. 45).
Leon held that an officer's reliance on a "facially valid search warrant" that was later found to lack probable cause did not require application of the exclusionary rule based on an evaluation of "the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate ...." (Leon, supra, 468 U.S. at pp. 902, 913.) Leon held the exclusionary rule is designed to deter police misconduct and not to punish judicial errors, and there was no basis to believe excluding evidence seized pursuant to a warrant "will have a significant deterrent effect on the issuing judge or magistrate." (Id. at pp. 916-917, fn. omitted.) Leon further explained that judges and magistrates "are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them." (Id. at p. 917.)
Evans relied on Leon and declined to apply the exclusionary where an officer relied on erroneous information in the department's computer that stated the defendant had an outstanding arrest warrant. The People introduced evidence that the erroneous information was placed in the computer by an employee of the court clerk's office, by calling the judicial employee who was responsible for the error. (Evans, supra, 514 U.S. at p. 4.) "If court employees were responsible for the erroneous computer record, the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction." (Id. at p. 14.) The exclusionary rule was designed as a means to deter police misconduct and "not mistakes by court employees." (Ibid.) There was no evidence that court employees were "inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [Citations.] To the contrary, the [court clerk] testified ... that this type of error occurred once every three or four years." (Id. at pp. 14-15.)
C. Willis
In Willis, supra, 28 Cal.4th 22, the case relied on by defendant, an officer checked " 'the local criminal justice information system' " (id. at p. 26) that showed the defendant was required to register as a sex offender. The officer also "checked 'the parole book,' or 'parole listing,' 'in the Bakersfield Police Department' " (ibid.), and it showed the defendant was on parole. The officer later testified the " 'parole book' was 'provided to the Police Department every month.' " (Ibid.) The listing was dated about two weeks earlier. The officer shared this information with a parole agent, who agreed the parole list showed the defendant was on active parole and directed the officer to conduct the search. Both the officer and the agent went to the motel, went into the room, and saw contraband. The defendant insisted he was not on parole and showed paperwork that said he had been discharged. The officer escorted the defendant outside while the agent made a call to confirm the defendant's parole status. The defendant eventually consented to the search, and the agent learned the defendant was not on parole. (Id. at pp. 26-27.)
At the suppression hearing, the police officer testified the " 'parole book' " was provided to the police department every month but did not give specific testimony about the source for the book or the parole listing. (Willis, supra, 28 Cal.4th at p. 35.) The People conceded the officer and the agent illegally entered the motel room since the defendant was not on parole, but argued the contraband found in the room was still admissible under the good faith exception to the exclusionary rule because the officer reasonable relied on information that the defendant was on parole. (Id. at pp. 29-30.)
Willis relied on Evans and held that application of the exclusionary rule depended "on the source of the error or misconduct that led to the unconstitutional search and whether, in light of that source, the deterrent effect of exclusion is sufficient to warrant that sanction. [Citation.]" (Willis, supra, 28 Cal.4th at p. 35.)
"As to the source of the error here, the Attorney General states that the 'sparse record' leaves 'the precise duties and responsibilities of the person or persons responsible' for the error 'unknown.' " (Ibid.)The Attorney General blamed the error either on the parole agent, the Department of Corrections (CDC), or an anonymous and " 'presumably unsworn data entry clerk' " from the CDC who maintained the parole list. (Ibid.)
Willis agreed with the Attorney General that there was a " 'sparse record' " that was inconclusive about the source of the error and " 'the precise duties and responsibilities of the person or persons responsible' for the error." (Willis, supra, 28 Cal.4th at pp. 35, 36.) However, Willis disagreed with the Attorney General's assertion that the defendant had the burden of producing evidence on this question. (Id. at p. 36.)
"Where, as here, the prosecution invokes the good faith exception, the government has 'the burden ... to prove that exclusion of the evidence is not necessary because of [that] exception.' [Citation.] Thus, 'the government has the burden of establishing "objectively reasonable" reliance' under Leon. [Citation.] Establishing that the source of the error acted objectively reasonably is part of that burden. [Citations.]" (Ibid., italics added.)
Willis noted that Leon and Evans did not place the burden of production on the defendant to identify the source of the error or how it occurred. (Willis, supra, 28 Cal.4th at p. 36.) "[I]n establishing the good faith exception, the high court stated in Leon that '[w]hen officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.' [Citation.] Numerous courts, including this one, have cited this statement from Leon in holding that the government has the burden to prove facts warranting application of the good faith exception. [Citations.]" (Id. at p. 37, italics added in original.)
"[I]n this case, because the government is responsible for establishing the circumstances under which the error and the warrantless search occurred and is in a much better position to obtain evidence regarding those circumstances, the burden rightly falls on its shoulders. [Citation.] We therefore disagree with the Attorney General's assertion that defendant bore the burden of producing evidence to identify the source of the error and his
or her duties. The prosecution bore the burden of proof on this point, and it failed to sustain that burden. [Citation.]" (Id. at p. 38, italics added.)
Turning to the merits, Willis held that Leon and Evans "teach that for purposes of the exclusionary rule, we must distinguish between errors of law enforcement and those of judges, court employees, and legislators." (Willis, supra, 28 Cal.4th at p. 47.) Willis concluded the exclusionary rule applied because the three possible sources for the error identified by the Attorney General - a police officer, a parole agent and/or a CDC data entry clerk - were all "adjuncts to the law enforcement team." (Id. at pp. 46-48, 51.) As a result, the fact that the defendant had been discharged from parole prior to the search was within the "collective knowledge" of the law enforcement team, which precluded the application of the good faith exception. (Id. at pp. 46.)
D. Herring
Herring is the most recent decision on this topic, involves a factual situation similar to this case, and declined to apply the exclusionary rule based on the evidence introduced by the People to meet the burden of proof. In Herring, a sheriff's investigator in Coffee County, Alabama, asked the county's warrant clerk to check if the defendant had any outstanding warrants and learned he was not wanted. The investigator asked the clerk to contact neighboring Dale County for the same information. The clerk from Dale County reported to the Coffee County clerk that the county's computer database showed the defendant had an active arrest warrant. The Coffee County clerk relayed that information to the investigator. The investigator arrested and searched defendant and found contraband. The Coffee County clerk also asked the Dale County clerk to fax a copy of the arrest warrant. (Herring, supra, 555 U.S. at p. 137.)
"There had, however, been a mistake about the warrant. The Dale County sheriff's computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when [the Dale County clerk] went to the files to retrieve the actual warrant to fax ..., [she] was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk's office or a judge's chambers calls [the Dale County clerk],
who enters the information in the sheriff's computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for [the defendant] did not appear in the database. [The Dale County clerk] immediately called [the Coffee County clerk] to alert her to the mixup, and she contacted [the investigator] over a secure radio. This all unfolded in 10 to 15 minutes, but [the defendant] had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff's office. [Citations.]" (Id. at pp. 137-138.)
Herring held the defendant's suppression motion was properly denied since the officer's reasonably belief there was an outstanding arrest warrant turned out to be wrong "because of a negligent bookkeeping error by another police employee ...." (Herring, supra, 555 U.S. at pp. 136-137.) The exclusionary rule did not apply because the error resulted from "isolated negligence attenuated from the arrest." (Id. at p. 137.)
Herring reviewed Leon and Evans and explained the extent to which the exclusionary rule applied varied with the culpability of the law enforcement conduct. (Herring, supra, 555 U.S. at p. 143.)
"To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level." (Id. at p. 144, italics added, fn. omitted.)
Evans had drawn a distinction between errors made by court employees and "adjuncts" of law enforcement; Herring acknowledged that not all "recordkeeping errors by the police are immune from the exclusionary rule." (Herring, supra, 555 U.S. at p. 146.) However, Herring held the law enforcement error "was not so objectively culpable as to require exclusion. In Leon, we held that 'the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.' [Citation.] The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant." (Herring, at p. 146.)
"If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. We said as much in Leon, explaining that an officer could not 'obtain a warrant on the basis of a "bare bones" affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search.' [Citations.] [The defendant's] fears that our decision will cause police departments to deliberately keep their officers ignorant, [citation], are thus unfounded." (Id. at p. 146, italics added.)
Herring acknowledged that in cases "where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system. [Citations.]" (Herring, supra, 555 U.S. at p. 147.) But Herring found no evidence the errors in the county computer system were routine or widespread. The arresting officer who relied on the information "testified that he had never had reason to question information about a Dale County warrant." (Ibid.) More importantly, the county clerks testified "they could remember no similar miscommunication ever happening on their watch, [citation]. That is even less error than in the database at issue in Evans ...." (Ibid.)
Herring thus concluded that evidence should only be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer, the police have engaged in "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Herring, supra, 555 U.S. at pp. 144-145.) However, "when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' [Citation.] In such a case, the criminal should not 'go free because the constable has blundered.' [Citation.]" (Id. at pp. 147-148.)
E. Analysis under Herring and Willis
Defendant relies on Willis and argues it was unreasonable for Deputy Sanchez-Murillo to rely on the dispatcher's information about defendant's purported probation status. As acknowledged in Willis, however, "[f]ederal constitutional standards generally govern our review of claims that evidence is inadmissible because it was obtained during an unlawful search. [Citations.]" (Willis, supra, 28 Cal.4th at p. 29.)
Herring was decided after Willis and articulated the operative federal constitutional standard to determine whether the exclusionary rule applies when an officer conducts a search or arrest based on erroneous information. (Herring, supra, 555 U.S. at pp. 136-137.) In contrast to Willis, Herring did not apply the exclusionary rule based on whether the source of the erroneous information was "an adjunct to law enforcement" or a court employee. Indeed, the erroneous information in Herring was apparently made by a clerk with the sheriff's department. (Ibid.) Herring cited to the extensive evidence introduced about the source of the error, and held that evidence should only be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer, the police have engaged in "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Id. at pp. 144-145.) However, "when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' [Citation.] In such a case, the criminal should not 'go free because the constable has blundered.' [Citation.]" (Id. at pp. 147-148.)
Based on the evidence at the suppression hearing, it appears Deputy Sanchez-Murillo reasonably relied in good faith on the information provided by the dispatcher. There is no evidence that Sanchez-Murillo's reliance was not reasonable, or she had any reason to doubt the veracity of the information.
Such a conclusion, however, does not end the analysis, because Herring's holding was based on the People's introduction of evidence in that case that identified the source of the erroneous information and showed the error was the result of negligence. In cases following Leon's application of the exclusionary rule, the courts have extensively discussed the evidence introduced in those cases about the sources for the erroneous information, and how and why that erroneous information was communicated to the officer in the field. Leon held the exclusion rule did not apply because the source of the erroneous information was the judicial branch. Evans similarly declined to apply the exclusionary rule since the source of the erroneous information was a court employee. Willis held the People had the burden to establish the source of the erroneous information, accepted the People's belief about who the source likely was, and concluded that all possible sources were adjuncts of law enforcement so that the exclusionary rule applied.
Herring modified the analysis and departed from distinguishing the source of the error, but still relied on the extensive evidence introduced by the People about how and why the error occurred to conclude that the officer in that case reasonably relied on the dispatcher's information and, more critically, that the error was the result of isolated negligence and not systemic error or misconduct. Herring left open the possibility that the exclusionary rule would apply if the erroneous information was the result of systemic error and/or misconduct. (Herring, supra, 555 U.S. at pp. 147-148.)
In contrast to Herring, however, the People in this case failed to introduce any evidence about why the dispatcher erroneously reported to Deputy Sanchez-Murillo that defendant was on searchable probation, the source for that erroneous information, and/or why that erroneous information was in defendant's records. While Herring eliminated the distinction between who was responsible for the error, it still requires the People to produce some evidence that the underlying mistake was the result of negligence and not "systemic error or reckless disregard of constitutional requirements." (Herring, supra, 555 U.S. at pp. 147-148.)
"[W]hen defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.]" (People v. Williams (1999) 20 Cal.4th 119, 136 (Williams).) The prosecution failed to establish any details regarding the erroneous information provided by the dispatcher to Deputy Sanchez-Murillo, and we cannot reach the question whether her reliance on the record check was reasonably made in good faith so that the exclusionary rule should not apply under Herring.
F. The Harvey-Madden Rule
As a separate but related issue, defendant argued in his suppression motion that in addition to satisfying Willis, the People had to introduce evidence about the source for the dispatcher's erroneous information about his probation status to comply with the Harvey-Madden rule. Defendant renews this argument on appeal and argues the People failed to do so. The People assert defendant failed to preserve review of his evidentiary objection under the Harvey-Madden rule.
The Harvey-Madden rule derives from the well settled principle that an officer may arrest or detain an "individual on the basis of information and probable cause supplied by another officer," or information that passed through "official channels." (People v. Gomez (2004) 117 Cal.App.4th 531, 540; People v. Brown, supra, 61 Cal.4th at p. 983.) "When an officer makes an arrest based on information conveyed through official channels, the constitutional validity of the arrest ultimately depends on the quality of the information received." (People v. Collins, supra, 59 Cal.App.4th at p. 993.)
"In California, certain evidentiary rules have been established to govern the manner in which the prosecution may prove the underlying grounds for arrest when the authority to arrest has been transmitted to the arresting officer through police channels. [Citation.] These evidentiary rules are often referred to as the 'Harvey/Madden rule' ...." (People v. Collins, supra, 59 Cal.App.4th at p. 993; People v. Gomez, supra, 117 Cal.App.4th at p. 540.)
The Harvey-Madden rule applies not only to arrests, but also to searches and detentions. (People v. Brown, supra, 61 Cal.4th at p. 983; People v. Harrison (1988) 199 Cal.App.3d 803, 812.)
" ' "[W]hile it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, 'when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.' ... To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer.... 'If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; "reasonable cause" or "reasonable grounds," ... could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence.' " ' [Citation.]" (People v. Collins, supra, 59 Cal.App.4th at pp. 993-994, citing People v. Madden, supra, 2 Cal.3d at p. 1021 and Remers v. Superior Court of Alameda County, supra, 2 Cal.3d at pp. 665-667; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553.)
" '[I]f the detaining officer himself [or herself] does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court, when challenged, evidence showing that the officer who originally furnished the information ... was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention.' [Citation.]" (People v. Orozco (1981) 114 Cal.App.3d 435, 444.)
In such situations, the prosecution can meet its evidentiary burden by introducing direct evidence about the source for the information, such as calling the police dispatcher at the suppression hearing to testify about the information conveyed to the field officer. (People v. Brown, supra, 61 Cal.4th at p. 983.) It may also be satisfied by "proof of transmission to one police department of official information from a different police agency ...." (People v. Armstrong (1991) 232 Cal.App.3d 228, 246.)
Alternatively, the prosecution may introduce a certified copy of an arrest warrant or other relevant documents that show the police did not fabricate the information contained in the dispatch that supported the detention, search, or arrest. (People v. Romeo (2015) 240 Cal.App.4th 931, 946-947; People v. Armstrong, supra, 232 Cal.App.3d at p. 245; People v. Alcorn (1993) 15 Cal.App.4th 652, 658-660.)
When officers respond to a dispatch based on a 911 call, the People may satisfy a Harvey-Madden evidentiary objection by producing the dispatcher or a recording of the 911 call or rely on testimony from officers about their observations at the scene that corroborate the 911 report as circumstantial evidence that the dispatcher actually received a telephone report about criminal wrongdoing. (See, e.g., In re Richard G. (2009) 173 Cal.App.4th 1252, 1259-1260; People v. Johnson (1987) 189 Cal.App.3d 1315, 1320; People v. Orozco, supra, 114 Cal.App.3d at pp. 444-445.)
"Harvey-Madden is a close cousin of the exclusionary rule - and in some respects operates similarly to it (e.g., subjecting certain evidence proffered to justify police activity to a test of reliability) - but the two are distinct. Unlike the exclusionary rule, which is a judge-made remedy aimed at deterring violations of the Fourth Amendment by law enforcement, Harvey-Madden is set of state law evidentiary rules governing the manner in which the prosecution may establish grounds for a challenged stop or search." (People v. Romeo, supra, 240 Cal.App.4th at p. 943, fn. omitted.) It is, "in effect, nothing more than the hearsay rule adapted specifically to motions to suppress. Obviously, when one officer relies on information provided by someone else to justify a stop or search, a hearsay problem arises...." (Id. at p. 944.) The Harvey-Madden rule "merely precludes the prosecution from relying on hearsay information communicated to the arresting officer that is not sufficiently specific and fact based to be considered reliable." (People v. Gomez, supra, 117 Cal.App.4th at p. 541.)
The Evidence Code and its hearsay rules, apply equally to section 1538.5 suppression motions. (Evid. Code, §§ 130, 300; People v. Romeo, supra, 240 Cal.App.4th at p. 940.)
"[I]n 'Harvey-Madden' cases, the constable has not blundered. [Citation.] It is the constable's lawyer who has, perhaps, blundered by not producing in court the recipient of the original telephone report" or the information relied upon the dispatcher. (In re Richard G., supra, 173 Cal.App.4th at p. 1260.)
G. Preservation of the Evidentiary Objection
We note that in Willis and other state cases, the courts did not expressly address the Harvey-Madden rule because the People attempted to meet the burden of proof to overcome defendant's suppression motion by introducing evidence about the source for the erroneous information given to the officers in those cases. (See, e.g., Willis, supra, 28 Cal.4th at pp. 36-38; People v. Downing (1995) 33 Cal.App.4th 1641, 1645-1646.)
While the Harvey-Madden rule is based on California evidentiary law, there is nothing in Herring that impliedly overruled Willis's holding that the People bear the ultimate burden of proof that the warrantless search was reasonable, and the exclusionary rule should not apply. "The durability of the Harvey-Madden rule as a basic feature of criminal procedure in California is evident" in People v. Brown, supra, 61 Cal.4th 968, which the California Supreme Court decided after Herring and reaffirmed the application of the rule when an officer detains or arrests a suspect based on information received through official channels. (People v. Romeo, supra, 240 Cal.App.4th at p. 943.)
On appeal, defendant argues the People failed to produce some evidence about the source of the erroneous information transmitted to Deputy Sanchez-Murillo, based on both the suppression motion and as required by the Harvey-Madden rule. The People assert that defendant never raised the Harvey-Madden rule or any type of evidentiary objection at the suppression hearing in this case and cannot raise the issue now for the first time on appeal. The identical argument was rejected in People v. Williams, supra, 20 Cal.4th 119, where the court held the defendant had preserved an issue relevant to his suppression motion by raising it in his motion, even though he did not expressly argue it at the subsequent hearing:
"In his moving papers, defendant argued that the police lacked probable cause to stop his truck, and that they had no policy governing inventory searches. Defendant thus anticipated the prosecution's justifications for the warrantless search of his truck and asserted inadequacies in those justifications. Defendant skipped the steps of first asserting a warrantless search, then waiting for the prosecution to justify the search, and only then challenging the justifications.
"We see nothing wrong with this collapsed procedure, which cut to the heart of the issue without wasting the court's time. If defendants can anticipate the justifications the prosecution will offer, and the primary basis for the motion to suppress is the inadequacy of those justifications, then they should state those inadequacies in their initial moving papers and expedite resolution of the issue. [Citation.] But in the case of a warrantless search or seizure, defendants are not required to anticipate the prosecution's justifications. Law enforcement personnel, not defendants, are in the best position to know what justification, if any, they had for proceeding without a warrant. Therefore, defendants who do not know, and hesitate to guess, what justification the prosecution might offer can simply await the prosecution's argument and evidence, and then respond with specific objections. [Citation.]
"On the other hand, in cases such as this one in which the defendant has anticipated and attacked the prosecution's justifications, the prosecution should avoid the 'trap' of simply responding to the defendant's arguments and then resting. [Citation.] The prosecution has the burden of proving a justification for a warrantless search or seizure, not merely refuting the defendant's arguments for why its justification is inadequate. [Citations.]" (Id. at pp. 136-137.)
Williams concluded the defense counsel in that case "did not expressly concede the issue. Counsel was of course free to focus his oral argument on one aspect of his motion and not another. Therefore, we find no significance in the fact that defense counsel did not specifically discuss the issue." (Williams, supra, 20 Cal.4th at pp. 137-138.)
In this case, as in Williams, defendant's motion to suppress asserted that he was detained and searched without a warrant or probable cause. Defendant's motion further stated that since he demonstrated a prima facie case the government acted without a warrant, the search was presumptively unconstitutional, and the People had the burden to show legal justification for the search and seizure. Defendant's motion cited Williams for the proposition that he had satisfied his initial burden to make a prima facie showing of a warrantless search, and that he had anticipated possible arguments to justify that warrantless search. More importantly, defendant's motion specifically cited the Harvey-Madden rule and asserted the People had to meet its evidentiary burden as follows:
"Police officers routinely make arrests based on information they received from other persons, such as victims, witnesses, informants, and fellow law enforcement officers. When a law enforcement officer or employee furnishes information to another who bases a detention, arrest, or search on such information, the prosecution must then, on request, show the basis of the former's information. (People v. Harvey[, supra,] 156 Cal.App.2d [at p.] 522; People v. Madden[, supra,] 2 Cal.3d [at p.] 1021; Remers v. Superior Court[, supra,] 2 Cal.3d [at p.] 667.) Such production is requested to be produced in the present case, insofar as such information was relied upon." (Italics added.)
The People's opposition did not address the Harvey-Madden objection or even whether the erroneous information was the result of negligence as required by Herring.
H. Analysis
We find defendant's suppression motion satisfied his initial burden to make a prima facie showing of a warrantless search, and shifted the burden to the prosecution to prove the warrantless search was justified under the Fourth Amendment. As in Williams, defendant's motion preserved his evidentiary objections under both Herring and Harvey-Madden, and gave the prosecution notice of what must be shown in any subsequent evidentiary hearing, regardless of whether defense counsel verbally addressed the issue at the suppression hearing. (Williams, supra, 20 Cal.4th at pp. 127-128, 136; People v. Romeo, supra, 240 Cal.App.4th at pp. 940-941, 952.)
While Deputy Sanchez-Murillo apparently relied in good faith on the dispatcher's information, the People still had the burden of proving the warrantless search was reasonable under the circumstances and the exclusionary rule did not apply. (Williams, supra, 20 Cal.4th at p. 130.) More importantly, the People had to produce evidence under Herring to show the dispatcher's mistake was the "result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements ...." (Herring, supra, 555 U.S. at pp. 147-148.) As in Herring and other related cases, the People could have called either the dispatcher or another witness to explain the source of the erroneous information that was conveyed to the dispatcher, why or how the error existed, and whether the error was the result of negligence. However, the prosecution failed to provide any evidence on this crucial point to satisfy its burden and show the exclusionary rule should not apply.
I. Remand
We find the matter must be remanded based on the circumstances of this case. In People v. Wooten (1985) 168 Cal.App.3d 168, this court found the trial court erroneously failed to apply the Harvey-Madden rule to a suppression issue. Wooten remanded the matter "for a hearing on the Harvey-Madden issue," with directions for the trial court to resolve the issue and either reinstate the judgment, order a new trial, or dismiss the case. (Id. at p. 172.)
We similarly rely on Wooten and remand the matter for the limited purpose of the superior court addressing the Harvey-Madden issue. If the People satisfy Harvey-Madden and produce some evidence about the source of the erroneous information that the dispatcher gave to Deputy Sanchez-Murillo, that would likely also resolve the issue under Herring - whether the erroneous information resulted from negligence and was not from systemic error or reckless disregard of constitutional requirements.
III. Sentencing Issues
While we are remanding the matter on the suppression issue, we will address two sentencing issues for further guidance.
A. Background
On November 16, 2016, the jury found defendant guilty of count 1, transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); count 2, possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 3, possession of metal knuckles (§ 21810); and count 4, misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364).
The court found true the allegations as to counts 1 and 2, that defendant had two prior convictions for selling drugs in violation of Health and Safety Code section 11378, within the meaning of Health & Safety Code section 11170.2, subdivision (c); and as to counts 1, 2, and 3, that defendant served three prior prison terms (§ 667.5, subd. (b)).
Defendant's prior prison term enhancements were based on the following convictions: (1) obstructing or resisting an officer in violation of section 69 in 2014; (2) possession of a dirk or a dagger in violation of former section 12020, subdivision (a), and possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) in 2006; and (3) possession of narcotics for sale in violation of Health and Safety Code section 11378 in 2004.
On December 20, 2016, the court sentenced defendant to county jail for the following split terms: count 1, the upper term of four years, plus six years for the enhancements under Health and Safety Code section 11370.2, subdivision (c), and three years for the three prior prison term enhancements (§ 667.5, subd. (b)); and for count 3, a consecutive term of eight months (one-third the midterm of two years). The court stayed the sentence imposed on count 2 and imposed a concurrent term for count 4.
Defendant's aggregate sentence was 13 years eight months, with defendant to serve the first six years in jail custody, and the remainder to be served on mandatory supervision subject to certain terms and convictions.
B. Section 667.5 , Subdivision (b)
Defendant contends, and the People concede, that the court's true findings and terms imposed for the three prior prison term enhancements must be stricken based on enactment of Senate Bill 136 (2019-2020 Reg. Sess.), which went into effect on January 1, 2020, and amended section 667.5, subdivision (b). The amended statute now limits one-year prior prison term enhancements to convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 339; People v. Jennings (2019) 42 Cal.App.5th 664, 667-668.)
The parties agree the amended version of the statute is retroactive since defendant's case is not yet final, and defendant's underlying prior convictions are not within the provisions of the amended section 667.5, subdivision (b).
C. Health and Safety Code Section 11370 .2
Defendant contends, and the People concede, that the two consecutive three-year enhancements imposed under Health and Safety Code section 11370.2 must be stricken because that statute has been amended by Senate Bill 180 (2017-2018 Reg. Sess.), and the amended version applies retroactively to cases that are not yet final.
DISPOSITION
The matter is remanded as set forth above with directions for the superior court to either reinstate the judgment, order a new trial, or dismiss the case. (People v. Wooten, supra, 168 Cal.App.3d at p. 172.)
If the court reinstates the judgment, it must strike the three 1-year terms for the section 667.5, subdivision (b) enhancements and the two 3-year terms for the Health and Safety Code section 11370.2 enhancements and resentence defendant accordingly.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.