P. v. Lavalley

Filed 5/13/08 P. v. Lavalley CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells and Robert F. O'Neill, Judges. Reversed and remanded with directions.

A jury convicted Yuri A. Lavalley of being under the influence of drugs (Health & Saf. Code,  11550, subd. (a)); driving under the influence of drugs (Veh. Code,  23152, subd. (a)); possession of narcotics paraphernalia (Health & Saf. Code,  11364); possession of 28.5 grams of marijuana or less (Health & Saf. Code,  11357, subd. (b)), and being an unlicensed driver (Veh. Code,  12500, subd. (a)). Lavalley was sentenced to 180 days in jail. She was granted bail pending appeal.

Lavalley brought a motion to suppress evidence under Penal Code section 1538.5^[1]at the time of the preliminary hearing. The motion was denied. She renewed her motion to suppress in the trial court. In that motion Lavalley requested the trial court to permit her to introduce a police radio recording that she had previously requested, but only received the day of the trial court suppression motion. Lavalley offered the recording to impeach police officer testimony. The judge hearing the motion denied the request and considered the motion only on the materials presented at the preliminary hearing. Lavalley contends the motion judge abused her discretion in denying the request to introduce new evidence. We agree the trial court erred in denying the request to introduce the radio recording. Accordingly we will reverse the judgment and remand the case for a new hearing on Lavalley's motion to suppress with directions to allow the use of the police radio recording. If on remand the trial court grants the motion to suppress evidence, it shall vacate the judgment and proceed accordingly. If the court denies the motion it shall reinstate the judgment.^[2]

DISCUSSION

A. Factual Background

On March 22, 2006, San Diego Police Sergeant Rorrison was conducting surveillance of a residence in the 7000 block of Mohawk Street in San Diego. He had

received some information that a woman who drove a PT Cruiser was selling methamphetamine from a residence on that street. During that surveillance Rorrison observed Lavalley and another woman attempting to jumpstart a PT Cruiser. The PT Cruiser was parked at an angle with its wheels about 36 inches from the curb. The second vehicle was parked, partly in the roadway, so that battery cables could reach the PT Cruiser. Once the PT Cruiser was started Rorrison observed Lavalley enter the car and drive away. Rorrison was in an unmarked car and did not attempt to stop her. Instead, Rorrison called for a marked car to stop the PT Cruiser because Rorrison thought Lavalley might be the person involved in drug sales and he wanted her to be identified.

A patrol officer stopped Lavalley based upon the sergeant's observations and the officer's statement that he observed Lavalley's car had dark tinted windows. After the stop the officer discovered Lavalley was on probation with a waiver of Fourth Amendment rights and that her license had been suspended. Other searches were conducted after that information was received.

B. Legal Principles

When a defendant brings a renewed motion to suppress evidence under section 1538.5, subdivision (i), the evidence on which the motion can be based is limited to the transcript of the earlier motion unless the newly presented evidence "could not reasonably have been presented at the preliminary hearing." (Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 544; People v. Drews (1989) 208 Cal.App.3d 1317, 1326.) The trial court's decision to admit or exclude evidence offered at the renewed hearing is a discretionary decision like other evidentiary issues we review under the abuse of discretion standard. (People v. Cooper (2007) 148 Cal.App.4th 731, 740.)

C. Application to the Facts

Prior to the preliminary hearing Lavalley filed a motion under section 1538.5 to suppress the evidence gathered from the stop of her vehicle and a subsequent search of her residence and vehicle. The prosecutor filed a response in which the stop and later searches were justified based on an existing Fourth Amendment waiver given as a condition of probation. At the preliminary hearing it became evident that the police did not know of Lavalley's Fourth Amendment waiver until some time after her initial detention. The prosecution at that hearing then sought to justify the detention based on the observations of a narcotics division sergeant that Lavalley's car had been illegally parked and upon subsequent observation by a traffic officer that the windows of Lavalley's car were improperly tinted.

On May 19, 2006, before the preliminary hearing, Lavalley requested the recording of police radio conversations regarding this case. By the time of the preliminary hearing on May 25, 2006, the prosecution had not yet provided the recording. Indeed, the recording was only provided to the defense on the morning of the trial court suppression motion, July 25, 2006. The motion judge denied the request to introduce new evidence based on the conclusion Lavalley should have either asked to continue the preliminary hearing, or foregone the motion to suppress at that time because the requested recording had not been supplied by the prosecution.

Lavalley argues the trial court's ruling is unfair. She had a right to a speedy preliminary hearing and should not have been required to give up that right, or the right to bring a motion to suppress at that hearing simply because the prosecution failed to produce the brief recording in a timely manner. We agree with Lavalley. The new evidence was extremely brief and was in fact unavailable to Lavalley at the preliminary hearing through no fault of her or her counsel. The new evidence, received only hours before the renewed motion, was relevant to impeach the police sergeant, on whose testimony the prosecution heavily depended. Further, the prosecution's response to the original motion to suppress was based on a totally different basis than the theory on which it had to base its claimed justification for the initial detention. It only became apparent after the prosecution's evidence was offered at the preliminary hearing that the police were not aware of Lavalley's Fourth Amendment waiver until they ran a record check after the detention. Thus there was nothing to alert defense counsel prior to the first motion hearing that the recording was necessary to impeach testimony that was different than that which was suggested in the prosecutor's responding papers.

The prosecution's position in the trial court and on appeal is that Lavalley should have asked for a continuance or postponed the suppression motion until the prosecution finally produced the requested recording. On this record we find such argument unpersuasive. As we have indicated there was nothing in the prosecutor's response to alert the defense that the claimed basis for the detention was anything other than the probation search waiver. It was only after the evidence was presented at the preliminary hearing that the defense learned the police had been unaware of the waiver and that there was a different basis for the stop asserted by the prosecution.

Given the actual unavailability of the recording at the time of the motion and the unanticipated shift in the prosecution's theory supporting the search, we find it unreasonable to dismiss the defendant's request by concluding the defendant should have given up her right to a speedy hearing or that she should have waited to challenge the search until the prosecution finally produced the recording, some two months later. It would have only taken a few minutes for the court to hear this evidence and make a reasoned decision to grant or deny the suppression motion. It was unfair to deprive the defendant of possible impeachment evidence where the question of whether the stop was valid is a very close one, turning significantly on the credibility of the police officers involved.

Since the court denied the renewed motion without permitting the defense to fully challenge the prosecution's evidence to support the seizure, this court cannot uphold the denial of the motions to suppress either before the magistrate or the motion judge. Accordingly, we will not address the merits of the magistrate's decision to deny the motion. In order to permit the trial court to make a reasoned decision on the merits of the motion under section 1538.5, subdivision (i), we reverse the judgment and remand the case for further proceedings.^[3]

DISPOSITION

The judgment is reversed. The case is remanded to the trial court with directions to conduct a new hearing pursuant to section 1538.5, subdivision (i) and to permit the defense to introduce evidence regarding the police radio recording. If, after a proper hearing the court denies the motion to suppress, the court shall reinstate the judgment. If the court grants the motion to suppress evidence it shall conduct such further proceeding as may be appropriate.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Since this appeal challenges only the denial of the motion to suppress evidence we will omit a statement of the facts of the offenses and discuss only those facts presented at the preliminary hearing relating to the motion.

^[3] Given our resolution of this case, Lavalley's claims of ineffective assistance by trial counsel are moot.