Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087634, Kevin L. Brown, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Following his conviction of a drug-related offense, Berry appeals from the judgment, contending the trial court committed reversible error by refusing to hear his motion to suppress evidence as untimely. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Duane Lavon Berry was charged by felony complaint with transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). He was represented at the preliminary hearing by appointed counsel. According to the hearing evidence, Deputy Michael Abbot of the Los Angeles County Sheriff’s Department was patrolling in the City of Paramount on November 14, 2006. At around 1:00 a.m., he saw Berry riding his bicycle on a freeway overpass. Berry had a beer in his right hand. Abbot stopped Berry and searched his person and backpack. Inside the backpack was marijuana, which Berry admitted to having cut from a bush near the freeway. At the conclusion of the hearing, Berry was held to answer as charged.
On December 18, 2006, Berry was arraigned on the information. He made a motion to replace his appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), which was denied, but his motion to proceed in propria persona (pro. per.) (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]) was granted. Berry represented himself throughout the proceedings. No motion to suppress evidence (Pen. Code, § 1538.5) was filed or litigated in this case.
Statutory references are to the Penal Code unless otherwise indicated.
On February 1, 2007, Berry received the discovery previously provided to his appointed counsel and declined the offer of the trial court (Judge Bacigalupo) to continue the February 14 trial date.
All subsequent dates are to calendar year 2007.
On February 14, the People announced ready for trial. The trial court (Judge Meyer) ordered that Berry be granted pro. per. privileges after confirming Berry’s claim of being denied such privileges at county jail, although they were previously ordered.
Berry declined to waive time, however, the court agreed to trail the trial until February 16, 2007, the 60th day, so Berry could use the law library to prepare any motions he wanted heard before trial.
On February 16, the trial court granted the prosecution’s motion to amend the charging document to allege sentencing factors in aggravation for trial by jury. The court informed Berry that he had good cause for a lengthy continuance to contemplate the current plea offer, to draft any motions, and to prepare for trial. Berry decided to waive time, but only until February 23 for a “chance to clearly understand the motions which [he] need[ed] to file at this point prior to trial.”
This was actually a second-amended information. The prosecution previously filed an amended information to allege Berry had previously suffered a serious or violent felony conviction under the “Three Strikes” law.
On the February 23 trial date, Berry first raised the possibility of search and seizure issues, by making an oral motion to suppress evidence. The prosecutor declined to waive written notice of the motion. Thereafter, Berry waived time, and the trial date was continued to March 21, with a pretrial conference date of March 9. The trial court (Judge Bacigalupo) noted the ensuing two weeks before the pretrial conference would give Berry “ample opportunity to research and draft and file all the papers that you believe are necessary to adequately defend your case.”
At the March 9 pretrial conference, Berry told the court he had no motions to file. His request for a continuance was denied.
On March 21, the People and Berry answered ready for trial in the master calendar court. When the parties appeared before the judge assigned to conduct the trial (Judge Brown), Berry stated he was not ready for trial, needed more time to prepare and to file “a lot more motions,” including a motion to suppress evidence, and he requested a continuance. The trial court returned the case to the master calendar court to hear the request for a continuance.
Back in the master calendar court, Berry insisted he had not been given adequate time to prepare a series of motions because he had never received a copy of the preliminary hearing transcript. The court (Judge Cheroske) immediately provided Berry a copy of the eight-page preliminary hearing transcript, denied his motion to continue the jury trial, and transferred the case to the trial court for jury trial. Voir dire commenced.
On March 22, Berry renewed his oral motion to suppress evidence, which the trial court (Judge Brown) denied as untimely. Berry’s motion to continue the jury trial was also denied. Voir dire resumed.
During jury selection on March 23, Berry sought to have a hearing on a motion to suppress evidence under subdivision (h) of section 1538.5, arguing he only became aware of potential grounds for the motion after reviewing the preliminary hearing transcript, which he had received just two days earlier. The trial court denied the motion as untimely after determining Berry had been present at the preliminary hearing. Jury selection was completed.
On March 26, the prosecution began its case-in-chief. Deputy Abbot testified he had stopped Berry for riding a bicycle at night on the sidewalk without a lamp in violation of the Vehicle Code and for having an open container of beer in violation of a city ordinance. On cross-examination, Deputy Abbot recited the pertinent statute, Vehicle Code section 21201, subdivision (d), which requires any bicycle “operated upon any highway during darkness” to be equipped with a lamp. Deputy Abbot acknowledged that Berry was on the sidewalk at the time of the stop. Berry asked, “So the reason you don’t [sic] have some probable cause to pull me over, because I was not committing that violation?” Deputy Abbot answered, “You had a beer in your hand also.”
Out of the jury’s presence, Berry renewed his request for a hearing on a motion to suppress evidence on grounds the deputy “perjured himself” during his trial testimony and admitted there was no “probable cause” for the stop. The trial court again denied Berry’s request as untimely.
On March 27, at the conclusion of the prosecution’s case-in-chief, Berry renewed his request under section 1538.5, subdivision (h) (hereinafter referred to as § 1538.5(h)), urging the same grounds. The trial court denied the request.
The jury convicted Berry of transporting marijuana. In a bifurcated proceeding, the jury found he had previously served separate prison terms for felonies (§ 667.5, subd. (b)). Following a court trial, Berry was found to have suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. b)-(i); 1170.12, subds. (a)-(d)). Berry was sentenced to state prison for an aggregated term of 10 years, consisting of eight years (the upper four-year term doubled under the Three Strikes law) for transporting marijuana, plus one year for each of two prior prison term enhancements.
DISCUSSION
Berry contends he was denied due process by the trial court’s rejecting, as untimely, his repeated requests for a suppression hearing. In determining whether the trial court’s procedure violated Berry’s due process rights, we are guided by the United States Supreme Court’s direction regarding the application of the due process clause to state criminal procedures. Because a state has the power to adopt and regulate criminal procedures under which its laws are carried out, “‘its decision in this regard is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [Citations.]’ . . . [B]ecause the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition, it is appropriate to exercise substantial deference to legislative judgments in this area.” (Medina v. California (1992) 505 U.S. 437, 445-446 [112 S.Ct. 2572, 120 L.Ed.2d 353, 363].)
The California Supreme Court has summarized a criminal defendant’s due process rights in a suppression hearing: “The United States Supreme Court has described the right of the defendant in a criminal trial to due process as ‘the right to a fair opportunity to defend against the State’s accusations.’ [Citation.] Similarly, ‘the spirit and purpose’ of the right to due process under the California Constitution is ‘to assure to everyone a full and ample opportunity to be heard before he can be deprived of his liberty or his property.’ [Citation.] However, the procedures at a suppression hearing before a judge need not be the same as those available to a defendant at trial. [Citations.] Nonetheless, at a suppression hearing, the defendant must have a fair opportunity to litigate the claim.” (People v. Hansel (1992) 1 Cal.4th 1211, 1219; see Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [70 S.Ct. 652, 657, 94 L.Ed.2d 865] [Due process calls for a “hearing appropriate to the nature of the case.”].)
Section 1538.5 sets forth a “comprehensive and exclusive procedure” for resolving search and seizure issues. (People v. Brooks (1980) 26 Cal.3d 471, 475 (Brooks).) In Brooks, the California Supreme Court explained that “section 1538.5 requires that a defendant’s motion for . . . suppression of evidence obtained as a result of a search or seizure be made at an early stage. In the case of a felony offense initiated by complaint, the motion may be made at the preliminary hearing before the magistrate. ([§ 1538.5, subd. (f).) Additionally, if the defendant is held to answer at the preliminary hearing . . ., the defendant is entitled to renew or make the motion in superior court at a special de novo hearing. ([Id. at s]ubd. (i).) Thus the defendant is entitled to two suppression hearings, both of which must take place prior to trial. The defendant is not entitled to renew his pretrial motion to suppress at trial and, subject to a narrowly circumscribed exception ([id. at] subd. (h)), he is not permitted to raise search and seizure issues for the first time at trial.” (Brooks, at p. 476; italics added, fn. omitted.)
Section 1538.5(h), which the Supreme Court referenced in Brooks provides: “If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.” (Italics added.) This provision has been interpreted as entitling the defendant to make a suppression motion during trial only when there has been “an intervening change in the applicable law or the discovery of new evidence in support of suppression.” (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 611.) Additionally, there is an obligation for defendant to show the potential bases for suppression could not have been discovered pretrial by exercising due diligence. (People v. Martinez (1975) 14 Cal.3d 533, 537 [motion denied as untimely where officer’s trial and preliminary hearing testimony differed, but counsel could have learned grounds for pretrial motion from defendant]; People v. Burke (1974) 38 Cal.App.3d 708, 713 [motion denied as untimely when brought after jury sworn but before opening arguments and no persuasive justification for the delay was presented]; People v. Frazier (2005) 128 Cal.App.4th 807, 828-829 [motion denied as untimely when brought on the first day of trial, facts of the searches were within defendant’s knowledge and substitution of counsel occurring two months earlier did not constitute persuasive justification for the delay].)
Berry has failed to show, either as a matter of due process or within the meaning of section 1538.5(h), that the opportunity to bring the suppression motion did not exist before trial. The record establishes he had several opportunities to litigate any search and seizure issues before jury trial commenced, but he chose not to take advantage of them. Berry was ordered to receive pro. per. privileges on February 14. From that date until the commencement of his jury trial on March 21, Berry had more than one month in which to complete his pretrial motions, and four court appearances in which to file them. Yet, during this period, each time Berry went to court (on February 16 and 23, and on March 9 and 21) -- twice following a continuance to enable him to prepare his motions -- he appeared empty-handed. Nonetheless, on each occasion and to a different bench officer, Berry claimed not to have had sufficient time to research and draft his motions, including, specifically a motion to suppress evidence. Other than complain of a delay in receiving his pro. per. privileges, Berry did not state orally or in writing any reason for not having adequate time to prepare his motions. In light of this history, Berry cannot now complain he was deprived of “a full and ample opportunity” to litigate any search and seizure issues prior to trial. (People v. Hansel, supra, 1 Cal.4th at p. 1219.)
Nor has Berry demonstrated that he was not aware of the grounds for a suppression motion pursuant 1538.5(h). As he did before the trial court, Berry attempts to fit himself within this exception, by arguing that not until he heard Deputy Abbot’s testimony did he realize he was not required to have a lamp on his bicycle when riding it on the sidewalk as opposed to the street. However, the fact Berry was riding his bicycle on the sidewalk without a lamp and Deputy Abbot’s reasons for stopping him hardly constituted new evidence. Berry was present at the preliminary hearing when Deputy Abbot testified; and he obtained a copy of the deputy’s report during discovery. That prior to trial Berry did not realize the significance of the Vehicle Code sections purportedly relied on by the deputy relative to the lawfulness of the stop did not justify a belated suppression hearing under section 1538.5(h). Having full knowledge of the facts and in representing himself, Berry had no one but himself to blame for the failure to have a suppression hearing before trial. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [a defendant acting in pro. per. is required to follow the law and rules as if he or she were an attorney].) He does not fall within that “narrowly circumscribed exception” (Brooks, supra, 26 Cal.3d at p. 476) permitting him to raise search and seizure issues for the first time at trial. Berry was afforded due process; and the court properly denied his requests for a suppression hearing during trial as untimely.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.