Opinion
C077940
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. HOWARD EDWARD WINSTON III, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 12F03368, 12F05147)
Defendant Howard Edward Winston III pleaded no contest to possession of cocaine base for sale (Health & Saf. Code, § 11351.5; undesignated statutory references are to the Health and Safety Code) and admitted five prior drug convictions (§ 11370.2) in case No. 12F05147, and pleaded no contest to felon in possession of ammunition (Pen. Code, § 30305, subd. (a)) and misdemeanor driving under the influence of alcohol with a prior driving under the influence conviction (§ 23152, subd. (a)) in case No. 12F03368. The trial court imposed a stipulated state prison term of 18 years eight months.
On appeal, defendant contends there were insufficient reasons to impound his vehicle, the inventory search of his vehicle was not conducted pursuant to a standardized policy, and asks us to review the sealed affidavit to ascertain whether the trial court erred in denying his motion to quash the search warrant. In supplemental briefs, he contends changes in the law reducing punishment for possession of cocaine base for sale and to section 11370.2 enhancements for prior drug convictions should apply retroactively to modify his sentence. Agreeing with the defendant as to the inventory search, we shall reverse and remand for further proceedings.
FACTS AND PROCEEDINGS
Case No. 12F03368
The relevant facts for case No. 12F03368 are taken from the hearing on defendant's suppression motion.
On May 8, 2012, California Highway Patrol (CHP) Officer Robert Martell and his partner Officer Wagner were patrolling on Fair Oaks Boulevard, just west of New York Avenue in Sacramento County. Officer Martell saw a silver Pontiac Grand Prix weaving within its lane and then cross over into an adjacent lane, on the right shoulder. Concerned that the driver was sleepy or under the influence, he conducted a traffic stop of the Pontiac, directing it to stop in a church parking lot. There he met defendant, who was sitting in the driver's seat. The car smelled of alcohol, and Officer Martell had defendant step outside. Defendant's eyes were bloodshot, red, and watery. Officer Martell conducted field sobriety tests on defendant and arrested him for driving under the influence of alcohol. Officer Martell handcuffed defendant and searched him while he was outside the vehicle. He then called a tow truck to store defendant's car.
While Officer Martell did paperwork, Officer Wagner started an inventory search of defendant's Pontiac. Officer Martell later assisted in the search. On the front seat, Officer Wagner found a black pouch that contained an individually wrapped black tar substance and some plastic containers holding individually wrapped pills. A black backpack that held a firearm, some ammunition, and ammunition magazines was found in the trunk. Cell phones and pay/owe sheets were also found within the vehicle.
Both the black pouch and backpack were closed containers. The trunk in which the backpack was found was closed as well. Asked on cross-examination whether he was aware of any written, standardized CHP policy on how to conduct inventory searches, Officer Martell answered, "As far as written, there's got to be something written but I don't recall what -- you know, if there's a policy or if there's a[n] instruction what it's called or you know." Asked if he was speculating on whether a written policy existed, Officer Martell affirmed that there was a CHP policy for inventory searches. When asked if he had viewed the policy himself, Officer Martell replied that "[w]e were trained in the academy as far as doing inventor[y searches] on vehicles. Obviously, we're taught from a policy or an instruction." Defense counsel then asked Officer Martell if he had "any knowledge what the policy of the CHP is relative to entry into closed containers during the course of an inventory search." He answered, "[n]o, I do not."
Officer Wagner found the black pouch while Officer Martell was with defendant in the patrol car. He found something in the pouch and showed it to Officer Martell.
Defendant moved to suppress the contents of this search, asserting the warrantless search was not justified either as an inventory search or as a search incident to arrest. The People filed an opposition, asserting the inventory search was reasonable under the circumstances.
The trial court denied the motion, finding the officer conducted a valid inventory search because they were legitimately inventorying the vehicle rather than using the inventory search as a ruse to get evidence of criminal conduct. Regarding CHP policy on inventory searches, the court also found the officers "believed that they were complying with the policy as they had been instructed on prior occasions, even though they couldn't articulate specifically what the policy was."
Case No. 12F05147
On July 24, 2012, officers from the Citrus Heights Police Department and deputies from the Sacramento County Sherriff's Department obtained a warrant to search defendant, several vehicles associated with him, and two residences in Fair Oaks and Citrus Heights. The supporting affidavit alleged that between January 10, 2012, and January 17, 2012, an officer received information from a confidential informant that defendant was selling heroin in Citrus Heights. Additional information was attached to the warrant and sealed in order to protect the life and safety of the informant or informants. The affidavit also detailed tracing cars and residences listed in the warrant to defendant through utility and DMV record searches. A search of a trash can at one of the addresses found: a clear straw with black burn marks, which was commonly used for smoking illegal substances, a sandwich baggie with one corner cut off, an item consistent with someone packaging and distributing smaller quantities of drugs, and a pay owe sheet. The affidavit also contained information showing that defendant was maintaining two residences, and that people engaged in the illegal sale of drugs often maintained secondary residences to hide their profits, drugs, evidence of drug sales, and other illegal items.
Executing the warrant, officers found $3,600 in cash on defendant as well as heroin, rock cocaine, Oxycontin, Methadone, and Oxycodone on codefendant Andrea Robinson, who was with defendant when he was searched. At one residence, officers found 12 packages containing a total of 468.1 grams of heroin, 2.4 pounds of cocaine wrapped in electrical tape, 148 grams of cocaine in quart sized zip top baggies, and 261 grams of cocaine in a one gallon zip-lock bag. They also found numerous pills of Opana, Oxycodone, Soma, and Oxycontin, a .40-caliber semi-automatic handgun, .40-caliber ammunition, and a digital scale. At the other residence, officers found a bottle of Promethazine and seven pills of Hydrocodone.
Defendant filed a motion to suppress evidence and traverse the warrant. The motion challenged the legality of the warrant and asked the trial court to review the sealed materials. The trial court reviewed the sealed materials and denied the motion.
DISCUSSION
I
The Automobile Impound
Defendant contends the trial court erred in denying defendant's suppression motion because there was insufficient reason to impound his vehicle. We disagree.
Inventory searches of police-impounded cars are "a well-defined exception to the warrant requirement of the Fourth Amendment." (Colorado v. Bertine (1987) 479 U.S. 367, 371 [93 L.Ed.2d 739, 745].) The Supreme Court has recognized that police officers have a legitimate interest in taking an inventory of the contents of vehicles they legally impound "to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." (Id. at p. 372 [93 L.Ed.2d at pp. 745-746].) Nonetheless, it is well established that an inventory search must not be a "ruse for a general rummaging in order to discover incriminating evidence." (People v. Williams (1999) 20 Cal.4th 119, 126 (Williams).)
" '[A]n inventory search conducted pursuant to an unreasonable impound is itself unreasonable.' [Citation.]" (People v. Torres (2010) 188 Cal.App.4th 775, 786 (Torres).) "The decision to impound the vehicle must be justified by a community caretaking function 'other than suspicion of evidence of criminal activity' [citation] because inventory searches are 'conducted in the absence of probable cause' [citation]." (Id. at p. 787.) "Whether 'impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.' [Citation.]" (People v. Williams (2006) 145 Cal.App.4th 756, 761.)
"Police officers may exercise discretion in determining whether impounding a vehicle serves their community caretaking function, 'so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.' [Citation.] Statutes authorizing impounding under various circumstances 'may constitute a standardized policy guiding officers' discretion' [citation], though 'statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure' [citation]." (Torres, supra, 188 Cal.App.4th. at p. 787.) California law authorizes an impound "[w]hen an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody." (Veh. Code, § 22651, subd. (h)(1).)
Defendant relies primarily on People v. Williams, supra, 145 Cal.App.4th 756. In People v. Williams, the defendant was subjected to a traffic stop for not wearing a seatbelt, and parked on the curb in front of his residence. (Id. at p. 759.) The officer recognized the defendant, ran a records check, and arrested him after determining there was an outstanding warrant for his arrest. (Ibid.) The officer knew the defendant's car was legally parked at his residence when he impounded the vehicle. (Id. at pp. 759-760.) The officer's agency did not have a written policy regarding when a vehicle should be impounded, leaving the decision entirely up to the officer's discretion. (Id. at p. 760.) An inventory search of the car found a loaded gun in the back seat. (Id. at p. 759.)
The Court of Appeal found the inventory search was unlawful because the decision to impound the car did not serve any community caretaking function. "No community caretaking function was served by impounding appellant's car. The car was legally parked at the curb in front of appellant's home. The possibility that the vehicle would be stolen, broken into, or vandalized was no greater than if [Officer] Morton had not stopped and arrested appellant as he returned home. In this regard, it is significant that other cars were parked on the street and that it was a residential area. The prosecution made no showing that the car was blocking a driveway or crosswalk, or that it posed a hazard or impediment to other traffic. Because appellant had a valid driver's license and the car was properly registered, it was not necessary to impound it to prevent immediate and continued unlawful operation. [Citations.] No other justification that would further a community caretaking function was offered or supported by evidence." (People v. Williams, supra, 145 Cal.App.4th at pp. 762-763.) The prosecution "therefore failed to establish the constitutional reasonableness of the seizure and subsequent inventory search." (Id. at p. 763.)
The present case is distinguishable from People v. Williams. Defendant's car was not parked on the curb by his residence, but at a church parking lot. Although Officer Martell did not notice any towing warnings or no parking signs at the parking lot, the lot was private property, and defendant was neither attending or visiting the church. Defendant's car was taking up space that could be used by someone attending, visiting, or working at the church. Removing the car freed up the space, insulated the church from potential liability if defendant's unattended car was stolen or vandalized, and kept it from having to pay to tow an uninvited vehicle. These are valid community caretaking functions rendering the decision to impound the car reasonable.
II
The Search of the Automobile
Defendant also contends the inventory search was unlawful because there was no evidence that it was conducted pursuant to a standardized policy. We agree.
The prosecution has the burden of showing "a legal justification" for a warrantless search. (People v. Redd (2010) 48 Cal.4th 691, 719.) When the police lawfully decide to impound a vehicle or otherwise take it into custody, the police may conduct an inventory of the vehicle's contents "aimed at securing or protecting the car and its contents." (South Dakota v. Opperman (1976) 428 U.S. 364, 373 [49 L.Ed.2d 1000, 1007].) An inventory search is constitutionally reasonable if conducted in accordance with " 'standardized criteria' " or " 'established routine' " and is not merely a pretext or ruse for an investigatory search. (Brigham City v. Stuart (2006) 547 U.S. 398, 405 [164 L.Ed.2d 650, 659]; Florida v. Wells (1990) 495 U.S. 1, 4 [109 L.Ed.2d 1, 6] (Wells).)
At the suppression hearing, the People presented no specific evidence of what standardized procedures governed the general conduct of the inventory search or of any policies regarding the opening of closed containers found during an inventory search. Officer Martell testified that a CHP policy on inventory searches existed and he was trained on it in the academy, but he could not recall it. Officer Martell also did not know if there was a CHP policy on the opening of closed containers during inventory searches. Officer Wagner, who started the inventory search and found and opened the black pouch on the front seat, did not testify. There is no evidence of whether he knew the CHP policy on inventory searches or conducted the search in accordance with that policy. Most important of all, the People never presented evidence of the CHP's policy or rules governing inventory searches or the opening of closed containers found during an inventory search.
The trial court cited People v. Green (1996) 46 Cal.App.4th 367 (Green) in upholding the search on Fourth Amendment reasonableness grounds. The defendant in Green was subjected to a vehicle stop for expired registration by an officer of the Inglewood Police Department, and was subsequently arrested for driving without a license. (Id. at p. 370.) The car was impounded, and rock cocaine was found during an inventory search. (Ibid.) The defendant argued at the suppression hearing "that the Inglewood Police Department had not provided the court any information that would indicate it had a policy on inventory searches." (Id. at p. 371.) The prosecution represented that it was caught by surprise, as it could not find the suppression motion defense counsel claimed to have served on it. (Ibid.) After a brief recess, the prosecution argued that "Vehicle Code section 22651, subdivisions (h), (o) and (p) were a codification of the policy and that in response to defendant's subpoena, the Inglewood Police Department had submitted portions of the Vehicle Code." (Ibid., fn. omitted.) The trial court granted the suppression motion, and the Court of Appeal reversed on appeal. (Id. at pp. 372, 375.)
The Green court centered its analysis on the Fourth Amendment's reasonableness standard. "Inventory searches must be reasonable under the Fourth Amendment. 'In applying the reasonableness standard . . . [the Supreme] Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.' [Citation.]" (Green, supra, 46 Cal.App.4th. at p. 374.) The Court of Appeal found, "[t]here['s] no indication that the inventory search of the car was merely a 'ruse' to try to discover evidence of criminal activity, nor is there any indication that the search exceeded the scope of its protective purposes." (Ibid.) The officer "considered the inventory search to be a natural consequence following the decision to impound defendant's automobile. Although she did not use the magic words 'standard procedure,' her matter-of-fact response indicates that an inventory search following impound of the vehicle is standard department procedure." (Id. at p. 375.)
The Court of Appeal recognized that inventory searches must be conducted pursuant to a standardized procedure. (Green, supra, 46 Cal.App.4th at p. 374.) It found "that Vehicle Code section 22651, subdivision (p), provided the required standard impound procedures; and [the officers] acted well within their authority to impound defendant's car pursuant to this section. We also conclude that, in inventorying defendant's impounded car, the officers followed a standard procedure, which has been found to prevail throughout the country and has been approved by an overwhelming majority of courts and that the search was, therefore, not unreasonable under the Fourth Amendment." (Id. at p. 375.)
Green was decided over a dissent, which pointed out, "the majority opinion contains the seeds of its own destruction. The opinion quotes the very language from United States Supreme Court decisions which requires law enforcement agencies to establish 'standardized procedures' for the conduct of inventory searches. [Citations.]" (Green, supra, 46 Cal.App.4th at p. 375, dis. opn. of Johnson, J.) The dissent further stated that "[t]he majority opinion does not offer any 'standardized procedures' Inglewood or the state has established defining how inventory searches are to be conducted. Instead it relies on Vehicle Code section 22651 which merely describes when vehicles may be impounded (and thus presumably subjected to some sort of inventory search). [Citation.]" (Ibid.)
Green was decided before the Supreme Court's decision in Williams, supra, 20 Cal.4th 119. The defendant in Williams was found to be driving on an expired license after he was pulled over in a traffic stop by a Tuolumne County sheriff's deputy. (Id. at p. 123.) Department policy required the officer to tow the vehicle, take an inventory of the vehicle's contents, and fill out a standard CHP form. (Ibid.) While taking the inventory, an officer found and opened leather bags that contained methamphetamine. (Ibid.) Among the arguments raised by the defendant at the suppression hearing was "that the police had no policy governing inventory searches." (Id. at p. 124.) In the appeal of the denial of his suppression motion, the defendant argued that while the department had a policy requiring officers to take an inventory before towing a vehicle, there was no policy regarding the opening of closed bags found during the course of the inventory. (Id. at pp. 124-125.) The court of appeal affirmed, finding the defendant did not preserve the closed container issue because it was not adequately raised in the trial court. (Id. at p. 125.)
The primary issue in Williams was whether the suppression motion gave adequate notice to the prosecution; the Supreme Court found it had and reversed the court of appeal. (Williams, supra, 20 Cal.4th at p. 123.) The Supreme Court also addressed the merits of the contention regarding department policy on opening closed containers. "Because of the risk that an inventory search will be 'a ruse for a general rummaging,' a risk that this case particularly exemplifies, a valid inventory search must adhere to a preexisting policy or practice. [Citation.] This rule may require the prosecution to prove more than the existence of some general policy authorizing inventory searches; when relevant, the prosecution must also prove a policy or practice governing the opening of closed containers encountered during an inventory search. [Citation.] Here, by raising the question whether the inventory search was pursuant to a preexisting policy and by quoting from Wells, defendant adequately put the prosecution on notice as to the specifics of the policy it needed to prove. Nevertheless, the prosecution failed to meet its burden." (Id. at p. 138.) Since the defendant preserved the issue regarding opening of closed containers and "the prosecution did not prove an adequate policy," the Supreme Court reversed the court of appeal. (Id. at pp. 138-139.)
Williams makes clear what the dissent recognized in Green. When a defendant contends the inventory search was not conducted pursuant to some preexisting policy or practice, the People bear the burden of proving the existence of such practices or policies and that the search was conducted pursuant to them. The fact that a particular inventory search appears to be reasonable or is not a ploy to get evidence is insufficient to justify the search without a warrant. "Our view that standardized criteria, ibid., or established routine, [citation,] must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into 'a purposeful and general means of discovering evidence of crime' [citation]." (Wells, supra, 495 U.S. at p. 4 .) Having "standardized criteria" is the sole means of establishing the legality of an inventory search, and must be proven by the prosecution when the legality of an inventory search is at issue. Green, which relies on a Vehicle Code provision that addresses only when a vehicle may be impounded, and does not address how to conduct an impound search, cannot support the trial court's denial of the suppression motion in this case. Likewise, the trial court's conclusion that the inventory search here was not a ruse to gain evidence of a crime is insufficient to support its ruling.
The Attorney General argues that Officer Martell, although "unable to articulate the exact policy regarding the opening of closed containers," nonetheless "testified to the existence of a standardized policy and the trial court reasonably inferred that the officers acted in accordance with that policy based on their training and years of experience." The trial court did not, and more importantly, could not make this inference because there is no evidence of what are the CHP's policies or practices governing inventory searches or the opening of closed containers during such searches.
We are also unconvinced by the Attorney General's citation to People v. Shafrir (2010) 183 Cal.App.4th 1238 (Shafrir) for the proposition that it is "reasonable to infer that officers received standardized training in department policy regarding vehicle impounds based on testimony that [the] car was impounded for safekeeping purposes." Shafrir addressed the decision to impound the car rather than the inventory search. (See id. at pp. 1245-1246.) Unlike this case, the defendant in Shafrir submitted a CHP manual on inventory searches into evidence at the preliminary hearing. (Id. at p. 1241, fn. 1.) That manual advised officers to rely on "the discretionary safekeeping provision of Vehicle Code section 22651, subdivision (h)," a provision that the court of appeal found to provide the necessary standardized criteria to comport with the Fourth Amendment. (Shafrir, at p. 1248.) Since Vehicle Code section 22651 does not address the conduct of inventory searches, Shafrir does not support the Attorney General's contention that the search of defendant's car was lawful.
Shafrir highlights the problem with the People's failure to submit evidence regarding CHP policy on inventory searches. The defendant's trial counsel in Shafrir "acknowledged the CHP manual regulating the department's field practices in impounding vehicles and conducting inventory searches was 'about the most extensive I have ever seen. . . . [V]ery, very detailed.' " (Shafrir, supra, 183 Cal.App.4th at p. 1243.) According to the court of appeal, "The CHP manual provides guidelines of standard practices once a car is impounded or stored. The CHP officer will conduct an inventory of the owner's property to protect the department from claims of lost, stolen or vandalized property. This inventory of items in legally accessible areas is to be included in the 'CHP 180 Vehicle Report.' If the CHP finds a locked container or box in the vehicle it is not to be opened. However, its locked condition is to be noted in the CHP 180 Vehicle Report. None of the items inventoried and searched after the impound here were locked or sealed." (Id. at p. 1241, fn. 1.)
This same manual may have been in force when Officers Martell and Wagner conducted the inventory search in this case, but we do not know, because the manual, its continued existence, and its contents were never submitted into evidence. The manual, if it was still in force at the time of the search, may raise issues important to the search in this case such as the CHP policy on opening closed or locked trunks or closed but not locked containers. However, Officer Martell admitted that he did not know the CHP policy on opening closed containers. More importantly, there is no evidence as to whether Officer Wagner who opened the first container, knew about CHP policy on inventory searches.
It is possible that the search here comported with CHP policy governing inventory searches. The People's failure to provide any proof regarding that policy invalidates the inventory search as justification for the warrantless search.
The Attorney General also attempts to justify the search as a search incident to a lawful arrest. Although defendant's trial counsel asserted the search of defendant's car was not a valid search incident to arrest, the People did not assert this justification for the search in the opposition to defendant's suppression motion, and did not argue for it at the hearing on the motion. Legal theories in support or in opposition to a suppression motion cannot be raised for the first time on appeal. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.) The Attorney General's contention is forfeited.
Since there is no valid exception to the search of defendant's car, the trial court erred in denying the suppression motion in case No. 12F03368.
III
The Search Warrant for the Residence
Defendant requests that we review the sealed affidavit to ascertain whether the trial court erred by refusing to disclose the identity of the informant and denying the motion to quash the search warrant and to suppress the evidence seized in the July 30, 2012, search. The People join in the request.
In his motion to suppress evidence and to quash and/or traverse the search warrant, defense counsel made a People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) motion, seeking review of the sealed search affidavit under People v. Luttenberger (1990) 50 Cal.3d 1. Such a motion requires the trial court to conduct an in camera hearing pursuant to Evidence Code section 915, subdivision (b). The court first determines whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It then determines whether the entirety of the affidavit or any major portion is properly sealed. (Hobbs, at p. 972.) The court possesses the discretion to call and question the affiant, the confidential informant, and any other witness deemed necessary. (Id. at p. 973.)
Following the in camera examinations, the trial court evaluates the motion to traverse:
"If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing. Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made 'knowingly and intentionally, or with reckless disregard for the truth,' and (2) 'the allegedly false statement is necessary to the finding of probable cause.' [Citation.]
"If the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. [Citations.]" (Hobbs, supra, 7 Cal.4th at p. 974.)
Here, the trial court followed this procedure and concluded it could not unseal any additional portion of the search warrant. As requested by the parties, we have reviewed the sealed affidavit under the procedure outlined in Hobbs. Based on our review, we find it not reasonably probable that defendant could have prevailed on a motion to traverse the search warrant. Therefore, the trial court properly denied defendant's motion to traverse the search warrant.
IV
Changes in Sentencing Laws
Effective January 1, 2015, the Legislature amended section 11351.5 to reduce the punishment from three, four, or five years in custody to two, three, or four years. (Stats. 2014, ch. 749, § 3; see People v. Keith (2015) 235 Cal.App.4th 983, 985.) Senate Bill No. 180 (Stats. 2017, ch. 677), which became effective on January 1, 2018, amends section 11370.2 to limit the scope of the enhancement to apply only to prior felony convictions for a violation of section 11380. Defendant, who was sentenced before this legislation went into effect, asks us to apply the changes retroactively to his sentence.
We decline to address these issues because of the disposition of this case in light of our holding that the trial court erred in denying his suppression motion in case No. 12F03368. Since some of the challenged evidence was found inadmissible, we must reverse the judgment and permit defendant the opportunity to withdraw from his plea. While the evidence found pursuant to the search warrant in case No. 12F05147 was correctly found admissible, we cannot substitute our judgment for defendant's and conclude he would have entered the plea notwithstanding the trial court's failure to suppress this evidence. (See People v. Hill (1974) 12 Cal.3d 731, 769, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5; People v. LeBlanc (1997) 60 Cal.App.4th 157, 168-169.)
Since we are reversing the judgment, we need not determine whether defendant's sentence should be modified on appeal in light of the amendments to sections 11351.5 and 11370.2, and accordingly decline to do so.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court. Upon motion by defendant within 30 days of the date on which this opinion is final, the trial court shall vacate defendant's guilty plea. Upon a subsequent motion by the People, the trial court shall reinstate any charges covered by the negotiated plea agreement, including any charges dismissed under the agreement. The case shall then proceed to trial or other appropriate disposition in accordance with the views expressed in this opinion.
HULL, Acting P. J. We concur: MAURO, J. HOCH, J.