THE PEOPLE, Plaintiff and Respondent, v. DAVID CARL DREWS, Defendant and Appellant.
No. D006590
Fourth Dist., Div. One.
Mar. 23, 1989.
A petition for a rehearing was denied April 11, 1989
208 Cal. App. 3d 1317
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.
Wilbur F. Littlefield, Public Defender (Los Angeles), Laurence M. Sarnoff and Albert J. Menaster, Deputy Public Defenders, and Diane Campbell, as Amici Curiae on behalf of Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Rudolf Corona, Jr., and Patti W. Ranger, Deputy Attorneys General, for Plaintiff and Respondent.
KREMER, P. J.—After the superior court denied his motion to suppress evidence (
I
At his preliminary hearing Drew moved to suppress evidence under
In the superior court Drews renewed his motion to suppress under
Counsel for Drews stated in camera he wanted to call four witnesses: Drews, Sevino, Mestes and Capone. The court found Drews and Sevino could reasonably have been presented at the preliminary hearing. The court determined Mestes and Capone could not reasonably have been presented at the preliminary hearing. The court proceeded to examine the admissibility of the proposed testimony of Mestes and Capone. The court found Mestes‘s
II
In determining the propriety of the superior court‘s denial of Drews‘s motion to suppress, we must review the evidence presented on the motion at the preliminary hearing and the facts proffered at the in camera hearing in superior court.
A
FACTS AT PRELIMINARY HEARING
Police arrested Drews after searching his apartment and seizing drugs and drug-related paraphernalia. At the preliminary hearing, Drews moved to suppress the evidence under
On October 8, 1986, at 5:27 p.m., four police officers executed a search warrant at Drews‘s apartment. The officers climbed the stairs to the second floor of the apartment complex. The stairs ended at a small landing with two apartments, numbers 49 and 51, opening onto it. Drews lived in number 51.
People‘s witness Officer Heggestuen testified he knocked on the door of apartment 51, identified himself as a police officer with a warrant to serve, and in a loud voice demanded entry. There was no response. Heggestuen heard no sounds from inside the apartment. After waiting 15 seconds, Heggestuen knocked again, repeated his verbal identification and again demanded entry. After waiting another 15 seconds with no response, Officer Hines used a metal pole to break down the door. The officers did not believe there was an emergency in the apartment. Upon entry Heggestuen saw a man—Damon Sevino4—walking toward the front door. Sevino was patted down for weapons and detained. The officers found Drews in a bathroom.
At the preliminary hearing Drews told the court he would call three witnesses on the “knock and notice” issue. Drews did not identify those three witnesses to the court. Ultimately only two defense witnesses, Leslie Brown and Tommy Enriquez, testified. Drews made no further mention of a third witness.
Defense witness Brown lived in apartment 49 directly across the landing from apartment 51. The distance between the doors of the apartments was two and one-half to three feet. Brown came home from work at 4 p.m. While sitting in his living room reading, Brown heard two loud booms, one of which knocked the door to his apartment open slightly. Brown looked out his peephole and heard a man yell, “Police! On the floor!” Brown did not hear any voices before that nor did he hear anyone knocking on the door of apartment 51 or demanding entry. Brown was about 15 feet from the front door when he heard the loud booms, which at first he thought were earthquakes.
Defense witness Enriquez was 13 years old and lived in apartment 50. While sitting on his balcony with friends, Enriquez saw police officers go up the stairs and start banging on the door of apartment 51. According to Enriquez, the banging did not sound like knocking. Instead, “it sounded super loud. Like bashing or something.” Enriquez did not hear the officers say anything.
Officer Bellizzi testified in rebuttal. Bellizzi helped serve the search warrant. According to Bellizzi, he was halfway up the stairs when he saw Heggestuen knock on the door, identify himself and demand entry. The stairway was about 15 to 20 feet long. Heggestuen knocked only once, and after waiting 15 seconds, the officers knocked down the door.
B
PROFFERED TESTIMONY IN SUPERIOR COURT
In the superior court Drews wanted to call bystander Mestes as an additional witness. Mestes was not present when the search warrant was executed. Mestes would have testified the officers searched his backpack when they came out of Drews‘s apartment. According to the defense theory, if the officers denied searching Mestes, the court could determine who was telling the truth regarding the “knock and notice” issue.
III
A
B
We now examine whether the superior court was correct in excluding the testimony of the four witnesses proffered by Drews. We find no prejudicial error.
WITNESS DREWS
In the superior court defense counsel wanted to call Drews as an additional witness. Counsel stated he did not have Drews testify at the preliminary hearing because it would have constituted malpractice and would have hampered Drews‘s Fifth Amendment rights against self-incrimination.
If a defendant testifies at a suppression hearing in superior court, his testimony may not be used against him by the People in their case in chief. (Simmons v. United States (1968) 390 U.S. 377 [19 L.Ed.2d 1247, 88 S.Ct. 967]; People v. Cornejo (1979) 92 Cal.App.3d 637 [155 Cal.Rptr. 238].) However, if a defendant‘s testimony at a pretrial suppression hearing is inconsistent with his testimony at trial, the People may use such pretrial testimony for impeachment. (People v. Douglas (1977) 66 Cal.App.3d 998 [136 Cal.Rptr. 358].)
In People v. Douglas, supra, 66 Cal.App.3d 998, the defendant testified in his own behalf. The trial court permitted the People to impeach him with his testimony at a pretrial suppression hearing inconsistent with his testimony at trial. The appellate court found no violation of the defendant‘s Fourth or Fifth Amendment rights. The court stated: “We conclude that defendant‘s testimony at a suppression hearing may be used for impeachment purposes if he takes the stand at his trial and testifies in a manner inconsistent with his pretrial testimony. This rule does not oblige a defendant ‘either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or . . . to waive his Fifth Amendment privilege against self-incrimination.’ (Simmons v. United States, supra, [390 U.S.] p. 394; People v. Coleman, supra, [13 Cal.3d] p. 879 [120 Cal.Rptr. 384, 533 P.2d 1024].) He may testify truthfully at his suppression motion should he elect to do so. In the event that he chooses to testify truthfully at trial, he runs no risk of being impeached. He has, however, no right to commit perjury and is not entitled to a ‘false aura of veracity.’ [Citation.] If his trial testimony is inconsistent with that previously given at the suppression hearing, he may be impeached therewith. (See
Drews cites People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307] in support of his contention the admissibility of a defendant‘s preliminary hearing testimony is not as clearly protected as that of his testimony during a superior court hearing on a suppression motion. We are aware of no language in May supporting Drews‘s contention.
We conclude Drews‘s testimony could reasonably have been presented at the preliminary hearing without violating Drews‘s Fourth or Fifth Amendment rights. The superior court properly held Drews could not testify at the special hearing.
WITNESS SEVINO
The superior court declined to permit defense counsel to call Sevino as an additional witness. Sevino was originally Drews‘s codefendant. Sevino was asked to appear voluntarily at the preliminary hearing. He came to the courthouse but left without notifying counsel. The defense was unable to put Sevino on the stand. Sevino had not been subpoenaed. Neither defense counsel nor his investigators had spoken to Sevino about his proposed testimony before the preliminary hearing because Sevino was not represented by counsel and was being diverted from criminal prosecution. None of the facts regarding Sevino‘s presence or status were brought to the attention of the magistrate.
The superior court found Sevino‘s testimony could reasonably have been presented at the preliminary hearing. The court was correct. Drews‘s counsel knew of Sevino before the preliminary hearing but did not subpoena him, did not notify the magistrate Sevino had been present but had left, and did not ask for a continuance to secure Sevino‘s presence. The superior court properly declined to permit Drews to present the testimony of Sevino.
WITNESS MESTES
The superior court held Mestes‘s testimony would not focus on the credibility of testimony regarding the “knock and notice” and excluded it. We agree. The evidence was not relevant. (
The superior court accepted for purposes of argument Drews‘s claim Capone could not reasonably have been produced at the preliminary hearing. However, the court excluded Capone‘s testimony as cumulative and surplusage. The court reasoned the defense witnesses at the preliminary hearing did not persuade the magistrate because they were too far away from the apartment to hear Heggestuen‘s “knock and notice.” The court stated Capone‘s testimony would not have changed the magistrate‘s decision because Capone was no closer than those other defense witnesses. The court said Drews should not be permitted to add one more witness “of the same sort” simply because the officer‘s credibility was being challenged.7
After determining Capone had been unavailable at the preliminary hearing, the superior court had discretion under
The superior court did not err in declining to permit Capone to testify at the special hearing.
IV
Drews contends the court erred in finding the police complied with section 1531‘s “knock and notice” requirements before entering his apartment. We disagree.
At the preliminary hearing the magistrate stated: “I find the officer [Heggestuen] is believable. I believe what he has testified to, and I find he
The superior court ruled no additional evidence could be introduced at the special hearing under
Drews contends, in determining whether nonresponse to the officers’ announcement constituted a refusal to admit them, we should consider the facts there was no evidence the officers knew anyone was present in the apartment, there were no lights on, and there was no contact with the occupants to verify their presence. The People contend the officers could reasonably believe they were being denied admission because the time of day was 5:27 p.m., it was a one bedroom apartment, the police knew from the search warrant narcotics were involved, and the officers knocked and waited an appropriate amount of time.
Considering the totality of circumstances here, we conclude the police conduct complied with section 1531‘s requirements in that the officer knocked, announced his purpose, waited a reasonable amount of time for a response, and repeated this again. Such conduct was reasonable.
The superior court correctly denied Drews‘s motion to suppress.
DISPOSITION
The judgment is affirmed.
Benke, J., concurred.
NARES, J., Dissenting.—I respectfully disagree with the majority‘s conclusion the trial court properly excluded Capone‘s testimony at the special hearing.
At a hearing in camera, the trial court determined defense witness Capone could not reasonably have been produced at the preliminary hearing. Nevertheless, the court in camera excluded Capone‘s testimony on the
The trial court erred because once it found Capone could not reasonably have been produced at the preliminary hearing, Drews had a right to a special hearing in open court to present this evidence.1 (
Here, defense witnesses Brown, Enriquez and Capone were physically situated in different places in the apartment building at the time Officer Heggestuen said he knocked and gave notice. Brown, Drews‘s next-door neighbor, did not hear the knock and notice; Enriquez, sitting on his balcony downstairs, did not hear the knock and notice; Capone, standing underneath the stairwell, did not hear the knock and notice; Officer Bellizzi, standing halfway up the stairwell to Drews‘s apartment, heard only one knock and notice. Officer Heggestuen testified he twice knocked and gave notice. In ruling Officer Heggestuen had complied with section 1531, the magistrate found this was a “close case.”
Because Drews was able to produce a witness not reasonably available at the preliminary hearing, the trial court should have permitted Capone to testify. Capone‘s testimony was relevant and probative on the issue of the officer‘s compliance with the knock-notice requirements of section 1531. Moreover, there was no evidence before the trial court that Capone‘s testimony would consume an undue amount of time, confuse the issue or be cumulative as to its evidentiary weight. (
A petition for a rehearing was denied April 11, 1989, and appellant‘s petition for review by the Supreme Court was denied June 22, 1989. Broussard, J., was of the opinion that the petition should be granted.