Opinion
As Modified Jan. 10, 1974.
Opinion on pages 527-545 omitted.
HEARING GRANTED
For Opinion on Hearing, see 121 Cal.Rptr.611, 535 P.2d 739.
[111 Cal.Rptr. 571]Evelle J. Younger, Atty. Gen., by Anthony L. Dicce, Deputy Atty. Gen., Sacramento, for plaintiff-respondent.
David M. Blackman, Sacramento, for defendant-appellant.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
Defendant appeals from a judgment following a conviction of grand theft (auto). He was found not guilty of a charge of receiving stolen property. Because of an illegal search and seizure and notwithstanding the failure of defendant's attorney to have moved for the exclusion of evidence in the manner set forth in Penal Code section 1538.5, before trial this court will hold (1) that the People were not prejudiced; (2) that the trial court erroneously ruled that evidence of the search's unconstitutionality had been waived; (3) alternatively, that defense counsel was inadequate; and (4) that a miscarriage of justice has resulted. The judgment must therefore be reversed.
FACTS
Ordinarily, it is the obligation of a reviewing court, when considering the evidence before the trial court, to resolve conflicts in respondent's favor. When, however, substantial error has been committed--as we find it has been in the case at bench--in the determination whether such error is prejudicial, resulting in a miscarriage of justice, it becomes our duty to examine the entire record; 'in effect, to some extent to [re]weigh the evidence.' (Aldabe v. Aldabe (1962) 209 Cal.App.2d 453, 26 Cal.Rptr. 208 (hr. den.); and see cases cited (id. at p. 457, 26 Cal.Rptr. 208).) Unfortunately, our summarization will necessarily extend this opinion beyond desirable limits. As nearly as possible, we shall describe relevant events chronologically.
Wayne Henson was called as the People's first witness. On the night of November 29, 1972, he stated, his 1962 Oldsmobile had been taken from the parking lot of the Gold Nugget Card Room at 719 12th Street, Sacramento. He testified that it was stolen sometime between 9:30 p. m. and two or three hours later, during which period he had been a patron at the bar. That night he claimed to have had a parting of the ways with his wife. He said he had loaded his personal belongings into the Oldsmobile, including the car's pink slip. Ordinarily, when he parks his car he locks it. This time he left his key in the ignition slot. He testified that over the entire period he was at the bar he drank just three beers and he had drunk no intoxicants before arriving at the bar. He denied [111 Cal.Rptr. 572] being intoxicated either in the bar or thereafter.
When he left the bar and went outside, his automobile was gone. He telephoned his wife to ascertain whether she had taken it but she had not. He did not then phone the police from the Gold Nugget. Instead, he walked to the family home at 1101 North B Street, a distance which he described was between 12 and 15 blocks away. There, both he and his wife called police headquarters at different intervals (he could not remember in what sequence). Finally a police officer arrived.
This officer, Patrolman Tom Petersen, was produced as a witness by the defense. He had been dispatched to the residence of Wayne Henson and his wife and had arrived at 3:40 a. m. on November 30th. Petersen testified that Henson was drunk and he filed a report of the incident disclosing this. Petersen took a physical description of the vehicle from Henson who could not remember the license number. Petersen left at 4:20 a. m. (It appears from police testimony that little weight had been attached to the report of theft because of the state of inebriation of the person reporting it.)
Henson testified that his car was recovered four or five days later at a body shop to which he had been directed by the police. The car was in a condition deplorably different from that in which Henson had last seen it. He said: 'The trunk lid was wedged, the latch was broken; the rear seat, both bottom and back, was disassociate--was out of place; and the--under the hood, there was some--some bolts taken off the generator, the mounting bolts, and some off of the battery case had been taken loose [most of his personal property was gone but some had been added].' His response to the following question was:
'Q Did you notice anything unusual about the glove box?
'A Yes, the glove box, the door was broke and warped and the inside of the glove box itself was almost taken out of the boards. It was taken apart and hanging under the dash.'
At this point, Henson's description of his car key becomes noteworthy. It was on a key ring containing two keys. One of these keys served all three of the following functions: (1) it turned the ignition on and off; (2) it fit the glove compartment and (3) the trunk. The other key had no use, to Henson's knowledge. As will appear below, it was not defendant Martinez, however, who had wrought this havoc. The record demonstrates mainly, by their admission, that it was done by the police.
Defendant Martinez testified twice in his own behalf. He stated a version of how he had come into possession of the Oldsmobile wholly irreconcilable with Henson's account.
His testimony of the events of the evening and night of November 29th may be summarized as follows: About 10 p. m. November 29, 1972, he had gone to the Gold Nugget. In the card room he had watched a game in progress. Then he went into the bar and ordered beer. Within about 15 minutes a man offered to buy him a beer. he accepted. A conversation ensued. The man was interested in finding a woman. Martinez could not help him. His host then suggested they go outside where his car was parked and where, he said, there was a bottle of whisky. Martinez accepted. Each had several drinks from that bottle in the car. Martinez asked the man (who called himself 'Bob') if he would drive Martinez to his home where he could obtain enough money to join in the card game at the Gold Nugget. 'Bob' replied that he believed he was too intoxicated to drive but that he, 'Bob,' wasn't 'going anywhere,' and that Martinez could take the car for the short trip.
That, Martinez had done. (Before the departure 'Bob' had looked through his coat pocket for the car key and was surprised to find he had forgotten to remove it from the ignition switch.)
Martinez took the car and returned within the hour. 'Bob' was not there. By [111 Cal.Rptr. 573] that time it was between 12 and 12:15 a. m. Martinez waited unavailingly until 1:30 for his return. He knew that 'Bob' was very drunk at the time the two had parted and Martinez did not know what to do with the car and so drove it to Martinez' home. Next morning a 7-7:30 a. m. he returned to the Gold Nugget, but again 'Bob' had not appeared. He then searched for identification, found the registration slip and later, using the key, found the pink slip in the glove compartment. When Martinez found that the name 'Wayne Henson' on the certificates did not correspond with the name 'Bob,' he drew a tentative conclusion that perhaps his acquaintance of the night before had himself borrowed the car. Inquiry from the bartender regarding Henson (or 'Bob') had been unavailing. Martinez then called on a friend, Rudy Savala, asking him to ride around with him for a period, after which they would return to determine whether 'Bob' had returned to the Gold Nugget. During this pilgrimage they drove past the apartment of another acquaintance, Robert Ramirez. They found him working on Ramirez' car. The latter thought he had a dead battery and asked Martinez to help him. He did. The men parked the Oldsmobile, removed the battery from it, removed the Ramirez battery and replaced it with the one from the Oldsmobile. It caused the Ramirez car to start. The three men drove to a nearby service station where the dead battery was left to be recharged. Because this would take time, the three men drove in the Ramirez car to the Gold Nugget in another attempt to find Henson (or 'Bob'), hoping to drive him back to retrieve his Oldsmobile. Again the trip was unfruitful. After approximately 25 minutes, Martinez, Ramirez and Savala returned to the service station where they picked up the battery and restored the proper batteries to the cars to which they belonged. Robert Ramirez corroborated the testimony of Martinez as to all of the events in which he had participated.
At that point in the direct testimony of Martinez, another person, Gregory Tabaras, is said to have arrived on the scene. Tabaras asked if there was a store in the vicinity. Martinez agreed to drive him to look for a store. When none was found, the two returned to the Ramirez place where Martinez intended to pick up Savala. They parked in the driveway in the rear of the premises. When they walked from the rear to the front sidewalk, they were accosted by two officers.
Testimony Of The Searches And Seizures
Officer Beder Clifton, in charge of the narcotics division of the Sacramento City Police Department, was in charge of a coterie of officers more or less involved in the events which we will relate below. (Only two of them, however, took part in the searches we will discuss.) Officer Clifton was the first of these two witnesses. Officer Edward Leonard of the Department of Justice, Bureau of Narcotic Enforcement, was the second. Since, however, it was the latter officer's search of defendant Martinez which is initially challenged, a chronological review of the testimony of both officers interchangeably will serve the interests of clarity.
During the morning of November 30th, Officer Clifton with Officer Leonard and two other officers had gone to the upper east apartment of a four-unit apartment house at 3015 U Street to serve a search warrant. The apartment was rented at the time by Robert Ramirez. He was not at home when the officers called. There was a 'female' there, however. Her identity was never determined. The officers found a hypodermic injection kit in the apartment. Clifton directed Officers Coupel and Garcia to remain in the apartment. Clifton and Officer Leonard drove in an unmarked police vehicle to establish a stakeout at a point a block east of 3015 U Street.
At about 12 noon, Clifton testified, he saw Ramirez, accompanied by three or four people, drive up in front of 3015 U [111 Cal.Rptr. 574] Street. These persons left the Ramirez vehicle and approached an unoccupied car which was parked directly in front of the Ramirez car. (The unoccupied car was the 1962 Oldsmobile.) The officers called the Oldsmobile the 'lead' car. Ramirez and his companions walked over to the 'lead' car and opened the hood. They appeared to start working under the hood. Then the officers observed Ramirez, or one of his companions, carry back to the Ramirez automobile what looked like a car's battery. The two officers then drove up to 3015 U Street.
None of the officers had been advised that the Oldsmobile was stolen or that any narcotic was contained therein. Officer Clifton had phoned (or radioed) headquarters and ascertained that no car of that license or description had been reported stolen. None of the events which thereafter transpired on the street can possibly be considered as having any relationship to the theft for which defendant was later charged. We can make the same observation regarding any claim that Martinez possessed or transported narcotics.
The officers took Ramirez and Rudy Savala into custody and escorted them to the apartment. Clifton and Leonard then left the apartment.
At that point, the officers testified, they saw, or thought they saw, the Oldsmobile drive by. Nothing in the officers' testimony suggests any chase. Officer Clifton testified they spent a short while driving around in the police vehicle looking for the Oldsmobile--unavailingly, returning when they did not find it. As they passed the alley between T and U Streets, they saw their quarry (the Oldsmobile) go into the driveway off the alley and saw Martinez and Tabaras leave the car. When the two had walked the distance from the parked Oldsmobile to the front of 3015 U Street, they were stopped by the officers.
At this juncture the prosecuting attorney stated: 'May we approach the bench, your Honor.' An unreported colloquy between court and counsel occurred. It was followed by an order excusing the jury. Nothing in the clerk's minutes mentions the fact of testimony taken outside the jury's presence or its purpose. (Thirty-six pages of testimony, outside the jury's presence, however, were admitted.)
As soon as the jury departed, Clifton resumed the witness stand. He testified that the 'female' present at the Ramirez apartment when the officers had first arrived, when questioned regarding the whereabouts of Ramirez, had stated 'there was a possibility' that he was out obtaining narcotics. That, in the officer's opinion, had entitled him and Officer Leonard to approach defendant and his companion, Tabaras, and to accomplish the following: (1) They waited in front of 3015 U Street to confront Martinez and Tabaras when they arrived from where the Oldsmobile been parked; (2) they said they conducted a 'pat-down' search, with the results we will note; (3) the men were asked for identification which was given; (4) Tabaras, questioned by Clifton, was asked to whom the car belonged. He replied he didn't know. Officer Leonard said, 'I approached Mr. Martinez and requested some identification from him. He presented me some type of ID [it appears to have been a social security card] . . .. I then conducted a pat-down search in his pockets. I found numerous razor blades, still wrapped. I removed these from his pockets and I also removed from his pocket a pink slip for a vehicle, 1962 Oldsmobile.'
The record then indicates that neither of the officers was interested in the pink slip and gave it back to Martinez. While Martinez and Tabaras were there on the street, they were handcuffed (and it appears, with their hands behind their backs). When the officers were asked why, Officer Leonard replied, 'Well, we were conducting a narcotics investigation, the subjects appeared suspicious, and we wished to detain them. . . . Q [T]hat is based on the facts which you have already indicated to us here in court? A Yes, sir.'
[111 Cal.Rptr. 575]The testimony of the officers as to why they had approached, patted down and searched defendant and Tabaras was somewhat contradictory. Officer Clifton testified that it was because they weren't sure what, if anything, had been found on Ramirez upstairs. Also Martinez and Tabaras appeared to have arrived with Ramirez. The Officer's next testimony is puzzling. He said, 'Also, I wanted them off the streets, because we were ordering up a half ounce of heroin to come to that residence. I didn't want to scare away the people who were going to bring it.' (Emphasis ours.)
The trial court, using Penal Code section 1538.5 as a vehicle, admitted evidence of the search.
Later, after thee return of the jury to the courtroom, Officer Clifton, who in his testimony before the judge outside the jury's presence, had denied at the outset that he and Officer Leonard had suspected Martinez of possession of a stolen car when their first search was made, attributed that purpose as a principal reason for the search.
The testimony of defendant Martinez of the manner of approach of the two officers to accomplish these purposes is: 'They drove up pretty abruptly and they jumped out of their vehicle, and I believe it was Officer Leonard came at me pretty fast and slapped one of my arms--I had one of my arms down below on my side, and he--he--I forget what side, but he slapped me up--he said, 'Put your arms on top of the car,' and I put my arms on top of the car, and he started searching me. He started pulling papers and what I had in my pockets out of my pockets, and at the same time he asked me if I had any dope on me, and I told him, no, that I didn't. . . .'
Martinez and Tabaras were then taken to the Ramirez apartment. At the request of Officer Clifton, Martinez surrendered the keys to the automobile and the pink slip which had been originally the product of the search on the street. Clifton corroborated the fact that Martinez had told the officers he had borrowed the Oldsmobile from the owner who was intoxicated and who had loaned it to him at a bar. Clifton testified he suspected nothing odd about this at that point since habitues of the section of the city where the bar is located frequently lend cars one to another. Officer Clifton then testified: 'He [Martinez] described the friend, as I remember, as being about five-six or seven, slight build . . ..' This description does not accord with the description of Henson as given in the courtroom. Henson described himself as being 'six feet one inches tall,' his weight as 'one hundred ninety-three pounds.'
Officers Clifton and Leonard then went downstairs to the automobile. They said nothing about any attempt to open the glove compartment or the trunk with the key which they had in their possession. They admit prying open the glove compartment and the trunk with a 'pry bar' found in the back seat of the Oldsmobile. An Inference may be drawn that they were making a thorough search of the vehicle for drugs. Such inference would be permissible from the facts (1) that the officers were searching for narcotics, (2) Officer Clifton made the somewhat significant statement in his testimony: 'We pulled the back seat of the car to look in the trunk and saw nothing more than, I think, a tire and probably a tire iron. The remainder of the car was clean . . ..' (Emphasis ours.)
No one other than the police was in possession of the Oldsmobile from the time of the Clifton-Leonard search until it was recovered by Henson four or five days later. We see no reason to doubt the portion of Henson's testimony describing the car's condition.
After searching the Oldsmobile, the officers returned upstairs and took Martinez to the police station. Clifton said: 'I booked the keys that were given to me by Mr. Martinez. I booked the pink slip that was handed to me by Ed Leonard, and I think the letters out of the glove box.' [111 Cal.Rptr. 576] The officer's testimony does not reveal what happened to Martinez.
A partial police record furnished us reveals that the Oldsmobile was not reported stolen until December 2, 1972. Martinez was charged December 22, 1972.
We have summarized the evidence admitted and have described the irregular methods used in submitting and admitting evidence relevant to the search. We have noted that early in trial the prosecuting attorney approached the bench. He then initiated the examination of all witnesses outside the presence of the jury. The method adopted could only have been to serve the purpose of obtaining the admission of evidence furthering the People's case. We will discuss below in detail the court's ruling after more than a half day of its time had been thus consumed.
THE APPLICABLE LAW
The Question Of The Validity Of The Pat-down, Search And Seizure
The Fourth Amendment of the United States Constitution provides in part that the People are entitled 'to be secure in their persons . . . against unreasonable searches and seizure . . .' That provision is a fundamental right protected against state action by the due process clause of the Fourteenth Amendment (People v. Cahan (1955) 44 Cal.2d 434, 438, 282 P.2d 905; Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) The California Constitution contains a similar guaranty. (Cal.Const. Art. 1, § 19.) California formerly held, as did many of the states, that notwithstanding the guaranty, illegally obtained evidence was admissible. (See Witkin, Cal. Evidence 2d, § 49, p. 51, and the several cases cited therein at said page and section.) The rule of exclusion was adopted in the Cahan case, supra, followed by its many progeny. Since the opinion in Cahan appears to us to be still the strongest argument expressing the reasons for the rule, we will advert to that opinion below in the context of the discussion of the rule applicable to the facts of this case relative to the assignment of error in the trial court ruling.
We will hold that both the put-down and search of defendant Martinez carried on by Officer Leonard on the street or sidewalk in front of 3015 U Street was not merely 'unreasonable'; it was a gross violation of the rights of Martinez. At the outset, we point out that a 'pat-down' search, i. e., a search made by an officer for his own protection where circumstances warrant a belief that the person 'frisked' may possess a weapon, is sometimes permissible. Nut there must be circumstances justifying such a belief. To justify a continued search of the person after the so-called 'pat-down,' something of a suspicious nature must be found. (People v. Mickelson (1963z) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.)
Nothing in United States v. Robinson, ---- U.S. ----, 94 S.Ct. 467, 38 L.Ed.2d ----, militates against this statement. The rule of that recent case is stated (on p. ---- of ---- U.S., on p. 477 of 94 S.Ct.) 'in the case of lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment.' Here there was no 'lawful custodial search.' Also, as to the law of California enunciated by California Constitution, article 1, section 19, and as interpreted by the California Supreme Court (which is binding upon this court notwithstanding the United States Supreme Court rule stated above--as applied to federal cases under the facts in Robinson), see: People v. Superior Court (Simon) (1972) 7 Cal.2d 186, 210-211, 101 Cal.Rptr. 837, 496 P.2d 1205.
We find in this record no evidence that the officers who searched had belief or grounds to believe defendant was a bad or dangerous person. He was an acquaintance of Robert Ramirez. The latter was apparently suspected of being a narcotics user. This court eschews 'guilt by association' in and of itself as a reason to suspect Martinez of wrongdoing. Neither officer had any basis whatever to suspect [111 Cal.Rptr. 577] Martinez or to justify a 'pat-down.' He had assisted in putting a battery in the Ramirez car, and obviously innocent act. Insofar as any evidence before us is concerned, the officers simply assumed a nonexistent right to stop any person at their will and caprice. They manufactured a reason to 'frisk' out of thin air; finding nothing by the 'pat-down,' they manufactured a reason to search. We find the following summation of the claim of a valid search in the Attorney General's brief to be significantly tortured reasoning: 'Officer Leonard stopped appellant, 'patted down' his outer clothing and felt what he believed to be a weapon. While removing the weapon he also removed the pink slip to the 1962 Oldsmobile . . ..' (Emphasis ours.) When we consider that the so-called 'weapon' was some safety razor blades either in an original cardboard package or in separate cardboard covers, the claim of legitimacy of the search becomes nonsensical.
It is unnecessary to repeat more of the record to support our holding that the behavior of the police in using the tactics adopted as a basis to handcuff and 'detain' defendant (the detention amounted to an arrest) was unconstitutional. The unnecessary wreckage of the Oldsmobile automobile by the police officers is further evidence of the total disregard of those officers for the constitutional rights of the property of innocent citizens.
The Meaning And Effect Of Penal Code Section 1538.5
In 1967, the Legislature adopted (and has once amended) a long, and partially--at least--comprehensive statute, Penal Code section 1538.5, permitting a defendant, usually before trial, to move to suppress illegally obtained evidence. The exception to the requirement of a pretrial motion is in subdivision (h): '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 in the municipal, justice or superior court.'
Ordinarily, of course, in the case of a defendant represented by counsel, knowledge by counsel would be attributed to defendant. For that rule to satisfy constitutional demands, however, the attorney (or attorneys) representing defendant cannot be incompetent to the extent defendant has been deprived of a crucial defense. Manifestly, that is particularly true when the attorney is (or attorneys are) assigned to represent defendant. This problem and the rules applicable thereto we will consider at greater length below.
First, we consider the purposes of the Legislature in the enactment of section 1538.5. These purposes were considered by our Supreme Court in People v. Superior Court (Butte County) (1971) 4 Cal.3d 605, 610, 94 Cal.Rptr. 250, 483 P.2d 1202, 1205: 'According to committee reports prepared prior to the enactment of section 1538.5, the intent underlying that section was to reduce the unnecessary waste of judicial time and effort involved in the prior procedures, whereby search and seizure questions could be repeatedly raised in criminal proceedings. [Citation.] Another acknowledged deficiency in the prior practice was the disadvantageous use of jury time resulting form the determination of search and seizure questions during the course of trial, thereby interrupting the trial's continuity. [Citation.] A third consideration in favor of requiring pretrial determination of motions to suppress was to afford the prosecution an opportunity to obtain appellate review of adverse rulings before trial had commenced and jeopardy had attached.'
In the case at bench the trial court considered only the last purpose. It ignored the first two purposes.
That the Legislature did not deem the rights of the People to be an overriding concern is demonstrated by the inclusion in subdivision (h) quoted above of provisions for motions made at trial. This is also inferable from the inclusion in subdivision (m) of the section of the following: 'A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case . . .. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.'
[111 Cal.Rptr. 578]The Question Of Defense Counsel's Inadequacy
It has become fashionable for appealing defendants to charge that defense counsel at the trial was incompetent. Hindsight is always 20-20. The choice of strategy and tactics is up to the judgment of counsel, and such decisions predicated upon full awareness of possible defenses will not subject trial counsel to the allegation of inadequacy by a reviewing court. (People v. McDowell (1968) 69 Cal.2d 737, 746, 73 Cal.Rptr. 1, 447 P.2d 97; see People v. Coogler (1969) 71 Cal.2d 153, 169, 77 Cal.Rptr. 790, 454 P.2d 686; People v. Miller (1972) 7 Cal.3d 562, 571-572, 102 Cal.Rptr. 841, 498 P.2d 1089.)
Inadequate representation by counsel is that which reduces the proceedings to a farce or sham. (People v. Aikens (1969) 70 Cal.2d 369, 379, 74 Cal.Rptr. 882, 450 P.2d 258; People v. Hill (1969) 70 Cal.2d 678, 688-689, 76 Cal.Rptr. 225, 452 P.2d 329.) Defendant must show withdrawal of a crucial defense from the case. (Hill, supra at p. 689, 76 Cal.Rptr. 225, 452 P.2d 329; People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) The defendant has the burden of demonstrating as a reality that he was prejudiced by failure of his counsel; it cannot be a matter of mere speculation. (People v. Thompson (1967) 252 Cal.App.2d 76, 92, 60 Cal.Rptr. 203; People v. White (1963) 222 Cal.App.2d 774, 776, 35 Cal.Rptr. 571.)
We have concluded that in this case the record, commencing with that portion of the preliminary hearing which is referred to therein, demonstrates inadequacy of representation by two of the assistant public defenders appointed by the trial court to represent defendant. This court has already held that the search by the officers on the street was unconstitutional. There are at least two sources where that fact had become demonstrably apparent to both the first and second assistant public defenders who represented defendant: (1) At the preliminary hearing where Officer Clifton's testimony showed he and Officer Leonard had acted in defiance of defendant' Fourth Amendment rights; (2) from access to the defendant whose testimony at the hearing held at the trial by the trial judge shows (without contradiction, incidently) that the officers' search was so tainted--a matter of which these public defenders must or should have been aware through consultation with their client. Yet no pretrial motion to suppress was made, nor was any motion made under Penal Code section 995. This was not a matter of trial strategy or tactics; the motion should have been made.
Did The Trial Court Err And, If So, Was The Error Harmful?
Defendant on appeal assigns as error the trial court's admission into evidence of the fruits of a search which we have shown to be unconstitutional. As a prelude to our discussion of the problem presented by defendant's contention, we summarize the portion of the record which illustrates the trial court's role in connection with the claim of error.
As we have already indicated, the evidence taken at the trial outside the presence of the jury was undertaken by the prosecuting attorney, who, according to the record, asked the court to excuse the jury and immediately thereafter directed his examination of both the police witnesses (Clifton and Leo nard) to the question of the validity of the search. These witnesses were cross-examined by defense counsel, [111 Cal.Rptr. 579] who then produced defendant Martinez as a witness. Testimony was taken directed primarily in an effort to seek admission of the evidence to prove the search was legal followed by defense testimony seeking to prove it was illegal. After the evidence was in, defense counsel stated, 'maybe, we should define the particular scope of the hearing. I don't we did for the record.' The court replied that it understood defense counsel was objecting both to the statement in the kitchen by defendant, 'and I also understand you're objecting to the admission or admissibility of the pink slip . . . [a]nd the keys.' Defense counsel argued the inadmissibility of the pink slip, saying: 'I think we have to start way back at the point where these two people [Martinez and Tabaras] are initially searched . . . in front of the residence . . ..' Defense counsel was interrupted at this point by the trial judge who pointed out: 'About one fifty-five this afternoon this jury was sworn, jeopardy attached, correct?' (That was agreed to by defense counsel.) The court then pointed out the enactment of section 1538.5 and stated that its purpose was to obviate the previous plight of the People whose 'case was . . . aborted or frustrated without any hearing on the merits' by the erroneous ruling of a judge who had made a ruling against the People on the question of an illegal search which decision was 'about one hundred eighty degrees wrong.' The judge then stated: 'Now, that is the circumstance where we are now. If I wanted to grant the motion to suppress, there is no recourse so far as the People are concerned.' The court then asserted that the enactment of section 1538.5 had provided 'an orderly procedure wherein the rights of both the defendant and the People can be protected. All I'm saying, really, is I don't have to get to the merits of the search, question of the search in this case, and I do not reach the merits because the burden is shifted and the burden is on the defendant to show a lack of opportunity or unawareness of the motion. There has been no showing of that kind.' (Emphasis ours.) (Defense counsel then said: 'All right, your Honor.')
In the interest of strict accuracy, the pink slip itself was not admitted into evidence. The reason: the car had been sold sometime after the events of November 30, 1972, and the pink slip had been surrendered. The officers had testified to its contents.
Defense counsel did argue that the motion had not been made earlier because there had been inadequate discovery. The court rejected that argument after the prosecuting attorney had shown that the preliminary hearing transcript reflected most, if not all, of the grounds upon which a motion to suppress could have been predicated. The court was therefore aware both from the preliminary hearing transcript and the evidence taken outside the jury's presence that had a pretrial motion been made, the evidence should have been excluded. (Incidently, it showed that at the preliminary hearing defendant was represented by a deputy public defender other than the one who represented defendant at the trial.)
During the course of the colloquy, defense counsel observed, 'I would have to say for the record, it possibly would have been possible to make a motion earlier and try to force the production of the missing reports, perhaps by a formal motion for discovery. That was not done and, perhaps, that was dereliction on my part.'
At the end of this discussion the court announced that the motion was denied and that the pink slip and the keys (to the car) were admissible.
We would point out at this juncture that the court was not making an order denying a motion to exclude evidence because it deemed the evidence admissible and properly to be heard by the jury. It was denying the motion solely upon the grounds that it believed that a timely motion under section 1538.5, as it construed the section, was a be-all-and-end-all of the right of a defendant under the Fourth Amendment.
Under a case where the facts were otherwise than those presented here, e. g., [111 Cal.Rptr. 580] where a guilty defendant apprised of his rights has deliberately NOT made a pretrial motion to suppress under section 1538.5 or a timely motion under Penal Code section 995, the theory of the trial court would have substance. But those are not the facts of the case before us. The bald truth of the matter is that two different members of the staff of the public defender, because of ignorance or neglect or both, in the preparation of Martinez' defense, did not make a pretrial motion to suppress evidence received under the most patent violation by the police of Fourth Amendment guaranties enjoyed by the guilty and the innocent alike.
We may assume that prescience is not required of a trial judge--that he could not know that the jury might not acquit with the consequential loss to the People of their right to an appeal, and thus we exercise hindsight in finding error in the trial court's ruling. But which is better--that this possible curtailment of the People's right to an appeal under the peculiar circumstances of this case be suffered, or that the exclusionary rule under the Fourth Amendment be preserved as a matter of public policy?
When People v. Cahan, supra, was decided by our Supreme Court in 1955, the exclusionary rule had not previously existed in California, i. e., evidence obtained by police officers as the result of a violation of the Fourth Amendment, could still be received in evidence. Cahan adopted the exclusionary rule. In adopting the rule the court considered and rejected all arguments which, over the years, had been used to justify admission of such tainted evidence. Preliminarily, the court stated that advocates of nonexclusion argued: 'It [i. e., evidence obtained by an illegal search] should not be excluded unless strong considerations of public policy demand it.' (Id., 44 Cal.2d at p. 443, 282 P.2d at p. 910.) But Cahan decided that public policy did demand the adoption of the exclusionary rule. Citing McNabb v. United States (1943) 318 U.S. 332, 87 L.Ed. 819, it said (44 Cal.2d at p. 445, 282 P.2d at p. 912): 'out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such 'dirty business.' It added (on p. 446, 282 P.2d on p. 912): 'It is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law.'
Subdivision (h) of section 1538.5 (quoted above) provides that a defendant, unaware of his grounds for the motion before trial, may be heard at trial. We hold that that provision was intended to apply to a defendant unaware of his grounds because of the incompetency of his appointed counsel as well as when his unawareness is due to some other more usual situation. We hold the court erred as claimed.
A second, and perhaps, more compelling, reason for our ruling is that defendant here has denied a fair trial in violation of due process under the Fourteenth Amendment, as well, because he had no real opportunity to be heard as to his Fourth Amendment rights.
A last observation is necessary. Both, or either, the inadequacy of defense counsel and/or the error of the judge have resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 835-836, 299 P.2d 243, and Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710.
This was not an open and shut case. Defendant's testimony was not such as to take its credibility beyond belief by reasonable men and women. The admission into evidence of the pink slip--or, more accurately, police testimony of its contents--was prejudicially injurious to the defense.
One problem which may arise if and when defendant is retried should be discussed. Clifton testified that defendant had described 'Bob' to him, a description which did not match Henson's actual appearance. Such evidence was admitted although taken in apparent violation of the [111 Cal.Rptr. 581] warning specified in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial court admitted the evidence for use as impeachment. Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, holds that statements taken without a 'Miranda warning' may nevertheless be used to impeach testimony offered by a defendant in his own defense. The statement, however, must be part of defendant's defense in chief. The prosecution is not entitled to draw it out as a part of its cross-examination--as was done here--and then exploit the contradiction to nullify the warning (which is a constitutional right). At least under existing law. (People v. Taylor (1972) 8 Cal.2d 174, 182-185, 104 Cal.Rptr. 350, 501 P.2d 918.)
Judgment is reversed.
RICHARDSON, P. J., and JANES, J., concur.
Moreover, in the case before us we are not primarily concerned with the People's right to challenge a not guilty verdict on appeal. The verdict on the essential count was one of guilt.