Opinion
B232377
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. TAMARAH JEANENNE COHEN, Defendant and Appellant.
Philip A. Rafferty for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA067114)
APPEAL from the judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Philip A. Rafferty for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of a motion to suppress evidence, Tamarah Jeanenne Cohen pleaded no contest to one count of possession of methamphetamine for sale, a felony, and was sentenced to three years of formal probation. On appeal Cohen contends the magistrate improperly denied her suppression motion based on the finding she was not credible because she had a motive to lie (to avoid conviction). We affirm.
Pursuant to a negotiated agreement, following Cohen's plea, a second felony count charging her with sale, offer to sell or transportation of methamphetamine was dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
With one significant exception, the facts are largely undisputed. On January 19, 2011 Los Angeles Police Detective Ben Herskowitz and his partner, Officer Ordonez, stopped Cohen after noticing the car she was driving had an expired registration tag. As the officers approached Cohen, who was sitting in the driver's seat, Herskowitz saw her attempt to hide a container under a jacket on the front passenger seat. Herskowitz recognized Cohen as someone he had previously arrested for possessing a methamphetamine pipe. Herskowitz identified himself as a police officer and asked Cohen if she had a methamphetamine pipe with her. Cohen responded "no." Herskowitz then told Cohen to step out of the car and asked for consent to search the vehicle. Herskowitz testified Cohen said, "Okay. But I'm in a hurry." Cohen, on the other hand, testified she said, "No. I'm in a hurry."
Detective Herskowitz walked Cohen to the back of her car where he completed a field-interview card. Officer Ordonez searched the vehicle. Inside the car Ordonez found a "hide-a-can," which Herskowitz testified was the item Cohen had been attempting to conceal, containing a large amount of methamphetamine. Ordonez also recovered several "small prepackaged bindles of methamphetamine," a digital scale with methamphetamine residue and 11 small plastic bags. Methamphetamine was also found in a coin purse attached to Cohen's key chain.
At the hearing on Cohen's motion to suppress evidence of the methamphetamine seized by Detective Herskowitz and Officer Ordonez, which was held concurrently with the preliminary hearing, Cohen's counsel argued, because the People have the burden of proving consent, the motion must be granted if the court found his client and Detective Herskowitz equally credible, citing People v. Dickerson (1969) 273 Cal.App.2d 645. Defense counsel also argued the court could not discount Cohen's credibility simply because, as the defendant, she had a motive to lie because that is true in every case and, if permitted, would undermine the defendant's right to testify. Finally, Cohen's counsel questioned the believability of Herskowitz's testimony since Cohen knew she had the methamphetamine in her car and it would make no sense for her to consent to the search while also saying she was in a hurry. Once the search occurred, she knew she was going to be arrested.
The court denied the motion, explaining, "The issue before the court is consent. The court found the officer to be credible." "She was — had a motive to lie. I didn't believe her. I believed the officer."
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court's factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, at p. 891; People v. Ramos (2004) 34 Cal.4th 494, 505.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28, subd. (f)(2) [formerly subd. (d)]; People v. Lenart (2004) 32 Cal.4th 1107, 1118.)
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2. The Trial Court Did Not Err in Denying Cohen's Motion To Suppress
A search warrant properly issued by a judicial officer is generally required to ensure a search is reasonable and not in violation of the Fourth Amendment. (People v. Williams (1999) 20 Cal.4th 119, 125.) Consent, however, is a recognized exception to the warrant requirement. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [93 S.Ct. 2041, 36 L.Ed.2d 854]; People v. James, supra, 19 Cal.3d at p. 106; People v. Oldham (2000) 81 Cal.App.4th 1, 9.) Whether consent was, in fact given, and whether it was done so freely and voluntarily are factual issues to be decided in light of all the circumstances of each case. (People v. Miller (1999) 69 Cal.App.4th 190, 203; People v. Aguilar (1996) 48 Cal.App.4th 632, 630.)
It is the People's burden to prove consent by a preponderance of the evidence. (People v. James, supra, 19 Cal.3d at p. 106 & fn. 4; People v. Miller, supra, 69 Cal.App.4th at p. 203.) If the court is unable to determine whether a police officer testifying consent was given or the defendant or other defense witness testifying to the contrary was speaking the truth, "it [is] perfectly free to draw the legal consequence from its inability, that is to say, to hold that the prosecution had not carried its burden of proof." (People v. Dickerson, supra, 273 Cal.App.2d at p. 651.) However, the court is entitled to disbelieve defense witnesses "in favor of the officer's testimony that defendant freely consented to the search upon being asked whether or not he objected thereto." (People v. Ratliff (1986) 41 Cal.3d 675, 687; accord, Miller, at p. 203.)
Here, the magistrate heard both Detective Herskowitz's and Cohen's live testimony and believed the police officer that consent had been given and disbelieved the defendant's contrary version of events. The evidence, therefore, was not in equipoise, as it apparently was in Dickerson; and we must defer to the magistrate's ruling, which is supported by substantial evidence. (See People v. Carrington (2009) 47 Cal.4th 145, 166 [on a motion to suppress evidence the trial court "'sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences'"; when reviewing its denial of a motion to suppress evidence, "'[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence'"].)
Although purporting to recognize the usual rule of deference to the trier of fact's findings, including credibility determinations, Cohen argues it is inapplicable in this case because the magistrate based her assessment of Cohen's credibility solely on Cohen's status as a defendant. Cohen's argument, presented without any supporting authority, fundamentally misconstrues what occurred. Her motion to suppress evidence was not denied simply because of her status as a defendant or as a penalty because she elected to testify. Rather, having heard two witnesses recite conflicting versions of the same conversation, the magistrate concluded the police officer was credible and Cohen was not. To include in that credibility evaluation an assessment of the witnesses' interest in the outcome of the proceeding is entirely proper, even if one of the witnesses is the defendant in a criminal case. (See Evid. Code, § 780, subd. (f) [court or jury may consider in determining the credibility of a witness "[t]he existence or nonexistence of a bias, interest, or other motive"].)
As the Attorney General notes, a similar argument was expressly rejected by the Supreme Court in People v. Bunyard (1988) 45 Cal.3d 1189, 1223: "Since defendant was clearly 'a person who testified under oath,' defendant was a 'witness' and the jury was free to 'consider anything in reason that tended to prove or disprove the truthfulness of his testimony, including the existence or nonexistence of a bias, interest or other motive . . . .' [Citations.] Thus, it was appropriate for the prosecutor to argue that the jury could consider whether defendant had a motive to lie about hiring Popham, arising from his interest in the outcome, i.e., to avoid conviction, just as it was appropriate for defense counsel to argue that Popham lied in exchange for the government's promise not to seek the death penalty against him." (See also People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [in considering defendant's claims in connection with motion to withdraw guilty plea, trial court may consider defendant's credibility and his interest in the outcome of the proceedings]; People v. Ravauz (2006) 142 Cal.App.4th 914, 918 [same].)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
JACKSON, J.