Opinion
G039376
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. IRA ETHAN NESBITT, Defendant and Appellant.
Ira Ethan Nesbitt, in pro. per.; and John F. Schuck, 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, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
At first blush this case appeared to present two problematic issues: (1) whether the trial court could, consistent with People v. Johnson (2006) 38 Cal.4th 717, deny a motion to suppress without a full evidentiary hearing; and (2) whether the trial court abused its discretion in summarily denying a motion to continue the suppression hearing brought by the defendant when the defendant indicated he was not prepared to go forward with the motion to suppress. These issues prompted no less than two rounds of briefing requests from this court.
As it turns out, though, there is less to this case than first meets the eye. In a word: The motion to suppress could indeed be denied without a full evidentiary hearing because the motion was never perfected under section 1538.5 of the Penal Code. That is, defendant Ira Nesbitt, then representing himself in propria persona, failed to comply with section 1538.5 because he didnt include points and authorities with his motion. Thus the rule in Johnson was never actually "triggered." And as to the motion to continue, that issue is beyond our authority given Nesbitts subsequent guilty plea, and Nesbitts never having obtained the certificate of probable cause necessary to appeal.
All statutory references in this opinion are to the Penal Code.
We should add, though, that defendant Nesbitt should not feel too bad about the ineffective assistance of counsel he rendered to himself on his homemade suppression motion. The trial court was presented with the fact that at the time of the search which was the subject of that motion, Nesbitt was on probation subject to a search and seizure condition. That is, a warrant — the sole substantive basis of his suppression motion — was not needed. In other words, his own ineffective assistance to himself was harmless.
I. BACKGROUND
Ira Ethan Nesbitt was arrested on May 6, 2007, and charged with possessing both cocaine for sale and certain drug paraphernalia, i.e., an opium pipe. A week later he signed a "Faretta Waiver," which is the form by which defendants in criminal cases elect to represent themselves.
The "Faretta Waiver" form is designed to discourage self-representation: Among other things it advises defendants that it "almost always unwise" to represent oneself, that one will not receive any special privileges or treatment from the judge, and that one "will receive no more library privileges than those available to other persons representing themselves," and, in that regard, "no extra time for preparation" either.
While in jail, Nesbitt prepared his own "suppression motion" pursuant to section 1538.5. Well, more precisely, Nesbitt prepared a two page hand printed "notice of motion to suppress evidence" of merciful legibility on lined paper, which was filed in late July 2007. This two-page "notice of motion" identified the specific items of evidence that Nesbitt wanted suppressed (basically, "all controlled substances" and "all paraphernalia" seized at a certain motel) and the reason for the motion: "the police action was without a warrant and lacked sufficient probable cause to justify an arrest." The notice also gave a specific date and time for the hearing: 8:30 a.m. on August 24, 2007 in Department 39. Nesbitt did not include points and authorities or any sort of proof of service of the document.
Nesbitt did prepare a memorandum of points and authorities in support of another motion, entitled "motion to safeguard prisoners civil rights," but that motion is not otherwise relevant to this appeal.
Despite the lack of proof of service, the local district attorney managed to find out about the August 24 hearing and filed, four days before, a document entitled "points and authorities in opposition to defendants motion to suppress evidence pursuant to P.C. § 1538.5." (The prosecutor added, after that title, the words "de novo testimony required.")
The prosecutors memorandum in opposition essentially told the story of Nesbitts arrest: Essentially, the arresting officer saw Nesbitt walking on the street, knew he was on "active probation subject to search and seizure terms" and also knew that there was a "no-bail warrant" out for Nesbitts arrest. When Nesbitt saw the officer make a U-turn in an apparent attempt to contact him, Nesbitt changed direction, and, while walking away, took out a cigarette box out of his pocket, took out something, and swallowed it. Nesbitt was arrested soon thereafter.
On August 24, the motion was called. The trial court quickly informed that it intended to conduct a probation violation hearing "commensurate with the 1538.5." Then the prosecutor spoke, who asserted that she didnt believe Nesbitt would be able to "meet the prima facie showing of a reasonable expectation of privacy" and mentioned that "if he is not able to meet that, I do have the officer here." The prosecutor then offered to do the "probation hearing after the ruling on the motions if the court would like to. . . ."
At that point the judge interjected, "So, you object on procedural grounds commensurate with the paperwork that he filed." Then he turned to Nesbitt and said, "You may be heard."
Nesbitt alluded to a (handwritten) motion to continue that he had filed in mid-August. He made it clear: "As I stated previously, I am not ready to proceed." He then complained that he had received "the information" (it is not clear precisely what he meant) from the prosecutor about 9 p.m. the previous evening, and made reference to his being "barely" able to use his right hand. The trial judge asked him if he had an investigator, and Nesbitt replied, "I have an investigator." The judge then asked Nesbitt if there was "anything else" he wanted to tell the judge. Nesbitt mentioned something about some problems he had had with his investigator (the comments dont make a lot of sense so we wont try to characterize them further ), then alluded to his "timely motion to continue."
This motion did not make it into the original record, but this court has granted a motion to augment the record to include it.
We can quote them though: "And, at that time, my investigator had quit at one point and I was without an investigator. He said he couldnt quit or I couldnt fire him because hes from court services, couldnt happen."
The declaration in support of the motion to continue lists, as basic reason for the request, that Nesbitt needed more time to prepare the motion, because of an unspecified "difficulty encountered in doing legal research." The declaration is no more specific than that.
For some reason, though, the continuance motion did not make it onto the calendar: A copy of a trial court case summary, apparently created some time before the August 24 "suppression" hearing, lists four matters "scheduled" for August 24 (Pre Trial, Motion Penal Code 995, Motion Suppress Evidence [Penal Code 1538.5] and Jury Trial), none of which include the motion to continue apparently filed August 16, 2007. On top of that, the clerks transcript does have the minute order from August 24, and makes no reference to a motion to continue.
In any event, Nesbitt continued on, wondering why the prosecutor had not received a copy of his continuance motion, in the process saying that he had spoken with the prosecutor on the case (not the one doing the hearing that day), who had "noted on her answer that I had not submitted a 1050," which was an allusion to the section in Penal Code dealing with continuances. Nesbitt continued that this prosecutor would have "acquiesced" to the continuance, but Nesbitt then mentioned that the trial judge had said he wanted to "hear the motion," — which, in context, appears to be a reference to the suppression motion, as distinct from the phantom continuance motion.
And at that point Nesbitt announced that "The [suppression] motion is not ready, sir." Then — in reference to the fact that all that had been filed was the notice of a suppression motion, he continued, "I had a notice for that motion. I dont know how you are going to make me — make me continue — I dont know how you are going to — why you are going to order me to continue with the motion when I say I am not ready and I want the 995 and the 1538 — or I want to effectively — I havent had the opportunity to effectively write." Nesbitt then alluded to the motion to "safeguard" his rights, in which he had complained about "not being allowed to get timely legal information from the library" and about the absence of medical attention for his "damaged right hand" with which he could not write. His comments ended with an objection to "moving forward with this motion" and a recognition that "nobody likes pro pers."
When the court asked Nesbitt if there was "anything else" he wanted to tell the judge, Nesbitt said, "Well, I guess — I guess if you are going to make me proceed, I would have to feel that I am not getting a fair trial and would like to use the PC [sic] 170.6 because I dont — if I am not —"
The trial judge broke in: "The district attorneys position is correct, the motion is specious and inadequate."
Interestingly enough, Nesbitt immediately agreed: "It is, and its not complete."
"Therefore, summarily," the judge responded, "the court denies the 1538.5 and the 995.
And with that the prosecution began to present its case on the probation violation hearing. The hearing revealed that prior to the arrest, the arresting officer had "received some information that someone named Ira Nesbitt was selling narcotics" in a given area of Anaheim, the officer pulled up a photo of Nesbitt, and also checked to see if he was a probationer, and then "verified" that Nesbitt was on probation subject to a search and seizure condition. Having done so, the officer went to an area of Beach Boulevard in Anaheim, "looking for" Nesbitt. The story of the ingestion of something from the cigarette box was then related, and Nesbitts arrest. A key found in Nesbitts pocket led to a motel room, which yielded a methamphetamine glass pipe about four inches long with burn marks and a white residue and two baggies of crack cocaine.
The hearing was not completed that day, and when court was resumed three days later, Nesbitt, now represented by an attorney, agreed to plead guilty in exchange for a six year sentence. (Since there is no issue raised about sentencing, we need not detail how the six years was calculated.)
In mid-September, Nesbitt filed a request for a certificate of probable cause, mentioning as possible issues, "Penal Code § 1050 violation — insufficient evidence — ineffective assistance of counsel." That last item apparently referred to himself, since there is nothing in this appeal to suggest that the attorney who represented him in regard to the guilty plea did anything ineffective. The request did not mention the denial of the continuance motion.
Not waiting, for the certificate to be granted, Nesbitt filed a notice of appeal on October 1, 2007. The trial court denied the requested certificate. (See rule 8.304(b)(4) [former rule 31(d)] of the California Rules of Court. )
Rule 8.304(b)(1) essentially requires a certificate of probable cause to appeal after a guilty plea. Rule 8.304(b)(4) provides these exceptions:
"(4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on:
"(A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or
"(B) Grounds that arose after entry of the plea and do not affect the pleas validity.
II. ANALYSIS
A. Did the Trial Court Err in
Summarily Denying the Suppression
Motion? No.
There is a clear requirement in the text of the statute governing suppression motions, Penal Code section 1538.5, subdivision (a)(2), that a suppression motion must include a memorandum of points and authorities and a proof of service. The colloquy between the trial judge and Nesbitt establishes that Nesbitt had not complied with this requirement, moreover, Nesbitt recognized he hadnt, and he himself made it clear that he was not prepared to go forward. So no wonder the "motion" — such as it was — was denied.
The exact language is from section 1538.5, subdivision (a)(2): "A motion pursuant to paragraph (1) shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted."
Nesbitt thus did not seek a ruling on the suppression of evidence as such. As the transcript makes clear, he only wanted a continuance of that motion. Our initial concern that People v. Johnson, supra, 38 Cal.4th 717 somehow automatically invalidates the trial courts summary denial of Nesbitts "suppression" motion turns out to have been misplaced. Cases are not authority for propositions that they do not consider. (E.g., People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198; People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7.) Johnson, to get to the nub of it, involved a suppression motion where the defendant actually sought a ruling on the merits of his search and seizure claim. And in that context, the court held, the prosecution could not meet its burden of proof of justifying a warrantless search by presenting its case through an affidavit of the police officer who had conducted that search — the prosecution had taken the position that if the defendant wished to cross-examine that absent officer, it was the defendants burden to send him a subpoena. Johnson stands for the proposition that the attempt to make life a little easier on prosecutors and their witnesses wont work, given the actual language of sections 1538.5 and 1539, which contemplates live testimony and credibility determined by a judicial officer.
Because Johnson does not apply, we decline to examine what we have now determined to be the academic question (to be sure, we asked questions in requests for supplemental briefing) as to whether People v. Davis (1989) 215 Cal.App.3d 1348 [no need for hearing where there is no dispute of fact] remains wholly good law in the wake of Johnson.
There is a comment in Anderson v. Superior Court (1988) 206 Cal.App.3d 533 that suggests that perhaps a motion to suppress can be perfected without the formalities envisioned in section 1538.5, subdivision (a)(2). Anderson involved the issue of whether a defendant is entitled to more than one full hearing on a suppression motion, and was one of those relatively rare published opinions denying a writ petition.
There is a comment in the opinion that a line of cases show that a defendant "need not follow strict procedures to bring a motion to suppress." (Anderson, supra, 206 Cal.App.3d at p. 542.) Elsewhere the court also opined that "courts have not required defendants to follow rigid procedures to bring section 1538.5 motions." (Id. at p. 539.)
In a preliminary hearing, the trial court ruled that the defendant had consented to a search of her apartment even though the defendant testified they just knocked on the door and barged in. (See Anderson, supra, 206 Cal.App.3d at p. 536.) Even though the defense counsel promised to test the issue of consent "later on" — presumably referring to a suppression hearing to come — when the suppression motion eventually was filed, it was denied on the ground that the preliminary hearing had already ruled the search was consensual. (Id. at pp. 538-539.) The defendant sought writ relief.
In denying the relief, the Anderson court reasoned that the defendant had made a "de facto section 1538.5 motion." (Anderson, 206 Cal.App.3d at p. 542.) Essentially, the court considered the strategy of having the defendant testify at the preliminary hearing exclusively on the consent issue, then trying to reserve that issue for a future suppression motion, to be a "ploy to obtain two hearings on suppression." (Ibid.) Since the Legislature had added subdivision (i) to section 1538.5 to make clear that a defendant gets only one full suppression hearing, the defendant in Anderson had had her one bite at the apple. Quoting Justice Mosks famous aphorism of substance over form — the quack like a duck metaphor — the court concluded that the defendant had made a "constructive motion" to suppress, there was substantial evidence to support the trial courts decision, and the motion was denied. (Anderson, supra, 206 Cal.App.3d at p. 544.)
In short, Anderson articulated a rule of substance over form. When defendants want a full hearing on a suppression motion, they can get one, but they cant play games to get two.
Here, however, Nesbitt didnt want the one to which he was entitled. He made it very clear to the trial court he was not prepared to proceed on the merits of his "suppression" motion. It would be the height of absurdity — inviting all sorts of gamesmanship — to hold that defendants can disclaim, on the record and directly to the trial judge, any intention to go forward on the merits of a suppression motion (whether it be the rudely stamped, unfinished, scarce half made up effort of a pro per, or a beautifully prepared fully formed motion done by an experienced lawyer) and then invoke Johnson for a hard and fast rule that the trial court necessarily erred in not giving the defendant a hearing the defendant told the trial court he didnt want! We note that in Anderson the court opined that not only does a defendant "need not follow strict procedures to bring a motion to suppress," but also said that the defendant must "seek and obtain an unambiguous ruling on the motion." (Anderson, supra, 206 Cal.App.3d at p. 542.) It is clear from this record that Nesbitt did not seek an unambiguous ruling on the merits of his motion.
To borrow a few lines from Richard III.
B. Did the Trial Court Err
In Impliedly Denying the Continuance
Motion? Not Properly Before Us
That is, Nesbitts real beef in this appeal was the denial — well, implied denial — of his continuance motion. (Its not clear from the record whether the trial court actually realized there was a continuance motion before it.)
Whatever the merits of this issue, it is beyond the purview of authority now. An appeal in the wake of a guilty plea that is based on the denial of a continuance motion, unlike the denial of a suppression motion, is one that requires a certificate of probable cause and here there is none. (§ 1237.5 [necessity of certificate].) In that regard, rule 8.304(b)(5) is also quite clear that, even when an appeal is allowed under rule 8.304(b)(4), a reviewing court is not to "consider any issue affecting the validity of the plea unless" the defendant has complied with the requirement for a certificate of probable cause. In effect, the denial of the continuance motion is off limits for this appeal, and must be taken as conclusive.
C. Ineffective Assistance?
Only Nesbitts Own
On Behalf of Himself
During the pendency of this appeal, Nesbitt filed with this court a request for a change of appointed counsel. Basically, Nesbitt always thought that the continuance issue should have been a part of the appeal from the beginning, and didnt like the fact that his appointed appellate counsel didnt raise it. (This court raised it, on our own, in a supplemental briefing order.) We denied that request. We should point out now that appellate counsels decision not to attack the continuance issue in the initial briefing was sound — the issue was precluded by the absence of a certificate of probable cause. To the degree that the absence of such a certificate was anyones fault, it was Nesbitts own, proceeding as he was then, in pro per.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, J.
ARONSON, J.