*1 No. In Bank. Mar. 18712. 1976.] [Crim. PEOPLE,
THE Plaintiff and Respondent, RIOS,
MANUEL CHAVEZ Appellant.
Counsel Court,
Kate under for Defendant Whyner, appointment Supreme and Appellant. General, Winkler,
Evelle J. Jack R. Chief Assistant Younger, Attorney General, Moore, General, S. Clark Assistant Edward Attorney Attorney Jr., Chaffee, General, T. and David R. for Fogel, Deputy Attorneys *4 Plaintiff and Respondent.
Opinion
WRIGHT, C. J.Manuel
Chavez Rios
from a
appeals
judgment
rendered
his
of
to
of
for sale.
plea
guilty
possession
amphetamines
(Former
Code,
11911,
Health & Saf.
now 11378.j1 Defendant had
§
§
first entered
of not
to each of three counts
pleas
guilty
alleging possession
of narcotics for sale and had moved
to section 1538.5 for the
pursuant
of
evidence as to each count.
suppression
When
motion was
physical
denied defendant withdrew his
of not
and
plea
guilty
pleaded guilty
'
one of the counts and the other
were
counts
dismissed.2 Defendant’s
of the trial court’s
on the
appeal challenges propriety
ruling
1538.5,
motion to
(§
subd.
We
(m).)
conclude that because
suppress.
some of the evidence should have been
must be
suppressed
judgment
reversed without evaluation of the
suffered
defendant
by
prejudice
because of the erroneous
v. Hill
12
(1974) Cal.3d 731
ruling. (People
393,
Near on November Sheriff Russ Holmes midnight Deputy was directed to an altercation in near a progress psychedelic parapherna- 1Unless otherwise all references are to of the Penal specified statutory sections Code. References to the Health and Code are to that code as it existed at the times Safety herein. pertinent sulfate, 2Defendant was in I count with sale charged for in possession amphetamine derivative, count II with for sale of a possession barbiturate both possessions being violation of Health and Code section and in count III with Safety 11911. for possession sale of of Health marijuana violation and Code The section 11530.5. Safety guilty plea I, was entered as to count and counts II and III were dismissed. defendant lia defendant. The officer found business by shop operated a rear of the described and others in an at the alley holding person shop when he as a Defendant explained burglary suspect. defendant the rear and he saw or four thereof entered his three persons shop also stated he and held. Defendant had person being pursued caught the floor of were articles on that the in the stacking burglars process and him. The arrested the when officer suspect shop interrupted and with to search for additional entered suspects shop the burglary. investigate and divided a front show room
A defendant’s into shop partition area, had further and the rear area been rear and storage living level with an to include a smaller storage eight-foot partitioned space Holmes had As overhead on of which articles been top piled. Deputy walked the rear area the officer from the show room into petitioner a clear saw on the of the small articles storage among top space red sodium secobarbi- numerous resembling plastic bag containing pills level, tal. he seized and to climb shelf Using stepladder opened and found sodium secobarbital capsules. bag, approximately The was able from additional to observe his deputy vantage point pills in an an which was within marijuana bag open open paper placed *5 cardboard box. He of the which contained took bag, possession 5,000 3 sulfate ounces of and amphetamine approximately marijuana Defendant was arrested. tablets. then
Additional officers arrived at the commented Holmes Deputy shop. that “were to have the whole to search location” they probably going directed the officers in a search. of contraband such Large quantities the entire were discovered warrantless search of during subsequent an sulfate tablets. additional premises, including amphetamine the officers that all were seized contends narcotics as to with defendant to We constitutional contrary agree prohibitions. discov tablets sulfate those narcotics amphetamine including defendant’s ered the warrantless search and seized following during that The as to show arrest. burden is on always People a within contraband seized a search without a warrant falls during on to the warrant if are to recognized exception requirement prevail v. States an to United attack contraband. (Katz seeking suppress 585-586, 347, 576, S.Ct. 507]; U.S. L.Ed.2d 88 389 357-358 (1967) [19 569, 720, v. 3 Horack Court Cal.3d 729-730 (1970) Superior Cal.Rptr. [91 1096, 478 P.2d v. 71 1105 1]; Edwards Cal.2d (1969) People Cal.Rptr. [80 356
633,
The court indicated that the
not
search was
legality
dependent
whether defendant had consented thereto and failed to
make any
issue,
relative to that
and as it does not
aas matter of law
finding
appear
that consent was
the search cannot be
freely
voluntarily given,
842,
on a consensual basis.
justified
(1967)
Henry
(People
485,
846
P.2d 557];
423
see
In re
10
also
Walker (1974)
Cal.Rptr.
[56
764,
177,
Cal.3d
780
band from the of the small was top storage space constitutionally remarked; 3fin the on motion to court I ruling the “. . . And don’t think it suppress, makes any difference whether the or If out not. pointed you [defendant location] that I still this of the of the disregard testimony think search is entirely, premises part follows, I arrest. ... think the same consent result because we are not about a talking situation....”
357
main, however,
He
in the
on his version of events
relies
impermissible.
to the seizure.
defendant’s
raises
testimony
taking place prior
Although
out,
conflicts with that
the
witnesses heretofore set
substantial
of
People’s
A
that conflict was resolved
the court in favor of the People.4
by
to section 1538.5 is one in which factual issues are
proceeding pursuant
the
v.
3
resolved
court
as a finder of fact.
West (1970)
by
sitting
{People
595,
385,
Cal.3d
602
477 P.2d
“In such a
409].)
proceeding
Cal.Rptr.
[91
witnesses,
the
the
resolve
conflicts
power
judge
credibility
any
inferences,
in the
the evidence and draw factual
is
testimony, weigh
the
vested in
trial court. On
all
favor the exercise of
appeal
presumptions
matters,
that
and the trial
whether
court’s
on such
findings
power,
or
be
if
must
are
substantial
implied,
express
upheld
supported
156,
13,
evidence.”
v.
Cal.3d
Lawler
9
160
(1973)
{People
Cal.Rptr.
[107
There is substantial evidence that Holmes entered Deputy defendant’s at for the defendant’s invitation of shop implied purpose (see v. (1973) investigating burglary Shepherd Cal.App.3d 866, 869 the lawful course of such 388]); Cal.Rptr. during [109 the observed contraband in investigation inadvertently deputy plain view; contraband; that he himself to retrieve such properly positioned and that he view so was able to additional doing accordingly contraband in the which is basis for conviction open bag paper herein. Neither the observation of view contraband from plain where an officer has a to be nor the seizure of such position right contraband is v. Court constitutionally prohibited. Superior {Lorenzana Block, 626, 585, 9 Cal.3d 511 P.2d (1973) 33]; 243.) Defendant’s motion for supra, suppression evidence was thus denied as to the contraband on physical properly sulfate top storage space, including amphetamine tablets.
It the trial court denied accordingly properly appears defendant’s section 1538.5 but not all of the motion as to some tablets, number, sulfate some seized amphetamine officers. When on such a record an accused withdraws a not guilty plea 4Defendant testified at the that after the officers left hearing investigating burglary to return 10 that he minutes later and demand to search the permitted premises; *7 them to enter after his demand a warrant and advised that only for search they rejected one; did not need a wallet that first that wanted to search for they they they represented or other identification which have been that may custody; dropped by suspect that a female had informed on defendant because she had represented burglary suspect “reds”; been “burned” when defendant sold her some and that there was no contraband view. plain 1538.5,
and enters a
to subdivision
of section
(m)
guilty plea pursuant
the
the
of
trial court’s
on
the
thereby challenging
propriety
ruling
appeal,
must in all
be
cases
reversed for reasons we enunciated in
judgment
Hill,
v.
The evil of an to measure the which an accused attempt prejudice may suffer in the of this case derives from the in which posture speculation the court is in an effort determine appellate compelled engage In here, instance, the circumstances for had the motion been prejudice.5 treated, defendant would have been confronted with a properly charge that he 5,000 on a seizure of possessed amphetamines grounded single rather than on seizures the pills, multiple totaling pills. Although evidence now before us a conviction of of the supports possession sale, for we cannot assess the of defendant’s defenses to pills possibilities unlawful The afford- single alleged possession. suppression hearing 5In we Hill stated the “The problem harmless error following language: concept as a basis for relief in according such is There setting clearly is no inappropriate. simply means intelligent of of a assessing erroneous refusal to impact particular suppress evidence. Unlike the there is at all in the record to ordinary post-trial appeal, nothing indicate what evidence or defenses is of on his own capable producing behalf. The considerations which lead an accused to to a strategic plead guilty pursuant will not on the plea bargain hinge only frequently quantum quality evidence, but also the defenses and on effectiveness of prosecution’s probable evidence which the evidence. defendant has to counterbalance the .After incriminating evidence, the exclusion of certain items of case continue to prosecution’s may appear invulnerable to an court which can look strength appellate necessarily However, evidence indicative of the accused’s the defendant have may competent or guilt. evidence, he believe has means of or doubt on such impeaching, discrediting casting and the items excluded on which the most difficult be ones appeal might very posed for defendant. the accused and his counsel are aware of what strategic Only problems assurance, cannot, favorable evidence is available to them. We with conclude an any court, which does not have the benefit of that can appellate arrive at an accurate assessment of whether consistently knowledge, defendant would after again plead guilty that some but not all of the evidence is to be To the knowledge challenged suppressed. an would itself contrary, unacceptable degree appellate speculation necessarily inject Hill, into the of the harmless error in such a context.” application concept (People 731, 768.) supra, *8 seizure; the ed an propriety challenge opportunity evidence, such as unrelated had no defendant has present opportunity if the control of dominion and pills, or that he lacked knowledge we cannot measure Because a defense. which such there are facts support in without defendant impermissible suffered engaging the prejudice have he would to be restored he is entitled position speculation, instance. in the first on the motion the ruled had court enjoyed properly the the to have is entitled for reasons judgment foregoing the aside. In such event of conviction and the set People may, guilty plea contained choose, all if effect a reinstatement of charges originally however, fact, that the view of the in information.6 In pills not be to be retried he should would be admissible if defendant is thus herein and to be bound foreclosed from an election judgment (See the information. to trial on all counts of not himself original subject Hill, 12 Cal.3d 769.) supra, the trial court. remanded to is reversed and cause The judgment within 30 therefor directed defendant’s motion That court is days herein, to reinstate of our decision to vacate guilty plea, finality to take and to trial or all contained in the information proceed charges with the views in accordance other expressed appropriate disposition or within the herein. Should defendant not so move 30-day period, move, is the trial court waive his to so should duly right further directed to reinstate the judgment. Mosk, J., Sullivan, J., Richardson, J.,
Tobriner, J., concurred. CLARK, J. For the reasons stated in dissenting concurring my 731, 770-771 v. Hill (1974) opinion 393, the harmless error I continue to from 1], 528 P.2d dissent holding entered from a to an taken doctrine guilty plea inapplicable appeal However, evidence. of a motion to erroneous denial suppress following Hill, cannot be assessed. case, of this as in in the circumstances prejudice Therefore, I concur in the judgment.
McComb, J., concurred. of the small storage space that the view on top 6We note contraband seized plain which charged was for sale included both barbiturates and marijuana, possession however, 2, ante.) that the (See fn. We no II and III express opinion, counts respectively. seized, warrantless in the subsequent seized items so without contraband illegally search, III. II and of counts charges would necessarily support