Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. William R. Bailey, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Super.Ct.Nos. RIF139712, SWF022864
William H. Strohmeyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Pursuant to a plea agreement, defendant Kenneth James Corbett pled guilty to possession of ammunition by a person prohibited from owning a firearm (Pen. Code, § 12316, subd. (b)(1)) and vandalism exceeding $400 in damages (§ 594, subd. (b)(1)). In return, the remaining allegations were dismissed, and defendant was placed on three years’ formal probation on various terms and conditions. Defendant’s sole contention on appeal is that the trial court erred in denying his motion to suppress. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
The factual background is taken from the suppression hearing.
On August 16, 2007, about 10:30 p.m., Riverside County Deputy Sheriff Juan Juarez was dispatched to the area of Temescal Canyon Road and the Interstate 15 freeway (I-15) in regard to a report of a male and female arguing. The caller had also stated that they had left in a vehicle, and the vehicle was driving erratically.
Deputy Juarez was driving north on Temescal Canyon Road toward the I-15 on ramp when he saw a vehicle parked in the dirt on the side of the road. As he approached the area, Deputy Juarez saw a man, identified as defendant, walking away from the vehicle. Deputy Juarez estimated that defendant was about 50 yards away from his (defendant’s) vehicle. Deputy Juarez asked defendant if there was any problem. Defendant told the deputy that he and his girlfriend had been fighting and were in an argument and that he was walking away so that “things” would not escalate.
On the side of the road, where defendant’s vehicle was parked, was a dirt path on which defendant was walking. The other side of the road was Tom’s Farm and a service station. Deputy Juarez explained that vehicles do not park in that area and can be towed for parking at that location.
Believing that the situation was the one for which he had been dispatched, the deputy parked his patrol car and approached defendant. For officer safety reasons, the deputy patted down defendant. As the deputy was patting down defendant, defendant’s girlfriend exited the vehicle, yelling and screaming. Deputy Juarez became nervous. He told her to get back in the car and that he would talk to her when he was done. Deputy Juarez “positioned” defendant for officer safety, meaning he took measures to place defendant in a position that minimized any potential danger to the deputy while the deputy investigated the situation, because it was dark and was possibly a domestic violence situation. Deputy Juarez could not recall what measures he took, i.e., whether he had handcuffed defendant or took other measures to increase officer safety. Deputy Juarez had handcuffed defendant at some point in time, but he could not recall exactly at what point. The deputy explained that defendant could have been handcuffed when he patted defendant down, when he was talking to him, or when defendant’s girlfriend got out of the vehicle, screaming.
During the course of the investigation, based on his training and experience, Deputy Juarez opined that both defendant and defendant’s girlfriend were under the influence of alcohol. There was alcohol on defendant’s breath, his pupils were dilated, and he was slow in movement and speech. After the deputy spoke to both defendant and his girlfriend, he placed them both under arrest.
After arresting them, Deputy Juarez called for assistance and advised “them” (presumably dispatch) that he was going to tow their vehicle for safekeeping, as defendant and his girlfriend were being arrested, and they did not want to leave their car on the side of the road. While conducting an inventory search of the vehicle, Deputy Juarez located a 14-round nine-millimeter magazine in the center console.
II
DISCUSSION
Defendant contends that the trial court erred in denying his motion to suppress evidence because the People failed to provide justification for the warrantless impound and search of the vehicle. Specifically, he claims the search of the vehicle was not justified as a search incident to a lawful arrest because defendant was not in close proximity to the vehicle at the time he was placed under arrest. He further asserts that the search did not qualify as an inventory search. The People respond that defendant waived these claims on appeal by failing to raise them in the court below and, notwithstanding such waiver, the suppression motion was properly denied. We are inclined to agree with the People.
“[I]f defendants have a specific argument other than the lack of a warrant as to why a warrantless search or seizure was unreasonable, they must specify that argument as part of their motion to suppress and give the prosecution an opportunity to offer evidence on the point. [Citation.] For example, defendants who believe the police failed to comply with the knock-notice requirement of Penal Code section 844 cannot simply bring a motion to suppress alleging a warrantless search or seizure and then wait until the appeal to raise the knock-notice issue. Rather, defendants must specify the knock-notice issue in the course of the trial court proceeding.” (People v. Williams (1999) 20 Cal.4th 119, 130.) “[I]f defendants detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.” (Ibid.) “Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked.” (Id. at p. 131.)
In accordance with that view, the Supreme Court specifically held that defendants “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.] Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal. ‘[T]he scope of issues upon review must be limited to those raised during argument.... This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party’s contentions.’ [Citation.]” (People v. Williams, supra, 20 Cal.4th at p. 136.)
Here, defendant’s motion to suppress only addressed the issue of the unlawful detention. The suppression hearing also focused on the detention, including argument from counsel. In fact, on cross-examination, defense counsel only asked Deputy Juarez questions relating to the detention issue. There were no questions about the search of the car. Defendant did not expressly or impliedly contend in the trial court, as he now claims on appeal, that the search of the vehicle was invalid because the People failed to provide justification for the warrantless impound and search of the vehicle. Because he did not raise the contention below, defendant has not preserved the issue for review on appeal. (People v. Williams, supra, 20 Cal.4th at p. 136.) For this reason alone we would reject defendant’s contention.
If defendant believed the search of the vehicle was unlawful, he should have presented this to the trial court. Had defendant brought this to the attention of the prosecution, the prosecution might have been able to present evidence that the search was valid pursuant to an inventory search or search incident to a lawful arrest. In fact, when the prosecutor sought to clarify that defendant was “only contesting the detention,” defense counsel did not argue otherwise and conceded that defendant was challenging “the detention in the search, your Honor. It’s on page 5 [of the suppress motion].”
Page five refers only to the detention and search.
Under Williams, defendant was required to advise the prosecution and the trial court, of any contention that the search of the vehicle was invalid. By failing to do so, he has waived the claim on appeal. (People v. Williams, supra, 20 Cal.4th at pp. 127, 130.)
Although this court would normally address the merits of the claim regardless of whether it was waived, this case presents a unique situation in which we cannot conduct such analysis. First, in order to evaluate the justification of search incident to a lawful arrest, the record must disclose where the female passenger was arrested. For the search to be justified as a search of a car incident to the arrest of its passenger, the passenger must have been “within reaching distance of the passenger compartment at the time of the search....” (Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710, 1723; 173 L.Ed.2d 455, 501].) Second, because defendant did not raise the issue below, the record does not contain sufficient information on whether the search of the car was justified under the inventory search. However, the record shows that, after both occupants of the vehicle (defendant and his girlfriend) were arrested, Deputy Juarez impounded the vehicle because it posed a safety hazard and searched the vehicle as part of the Riverside County Sheriff’s Department caretaking procedures. Deputy Juarez testified that the vehicle was parked on the dirt, in a dark area, near the on-ramp toward the I-15 freeway and that cars were subject to being towed at that location. From this testimony, a reasonable inference can be made that the vehicle posed a safety hazard. In addition, based on Deputy Juarez’s testimony, a reasonable inference can be made that the inventory search was conducted pursuant to police policies. (Colorado v. Bertine (1987) 479 U.S. 367, 371-372 [107 S.Ct. 738, 93 L.Ed.2d 739] [impoundment of a vehicle and subsequent inventory search are part of the caretaking procedures of the police].) “[P]olice have a legitimate interest in taking an inventory of the contents of a vehicle... before towing it. This inventory serves ‘to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.’ [Citation.]... ‘[I]nventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment.’ [Citation.]... [P]olice must ‘follow[] standardized procedures.’ [Citations.] ‘[R]easonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment.’ [Citation.]” (People v. Williams, supra, 20 Cal.4th at p. 126.)
Nonetheless, even if we were to presume that Deputy Juarez conducted the inventory search pursuant to police policy, the record simply is not complete enough to properly determine whether the justification applied. Although the record discloses that the car was parked and towed from a dark dirt area near the on-ramp of I-15 and posed a safety hazard, there was no testimony as to what the standardized police procedures were.
Defendant replies that his moving papers “put the prosecution on notice that he was challenging the warrantless search of his vehicle.” Not so. Defendant’s suppression motion merely sought to suppress all tangible and intangible items of evidence seized in the search of the car as fruit of the unlawful detention. Nowhere in the suppression motion does defendant argue that the search of the vehicle was unlawful. Based on defendant’s moving papers and arguments, the prosecution presented justification for the stop and detention. It was incumbent upon defendant to alert the prosecution to any claim that the search of the vehicle was unlawful. (See People v. Williams, supra, 20 Cal.4th at pp. 130-131.)
Since defendant failed to present the trial court with the same argument he now raises on appeal to support his motion to suppress the evidence of the ammunition, the claim is not reviewable on this appeal. Since he raises no other issue, we cannot find that the trial court erred by denying his motion to suppress.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J.KING J.
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