People v. Martinez CA2/3 ( 2014 )

Filed 5/2/14 P. v. Martinez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B247670
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391797)
v.
FRANCISCO MARTINEZ et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los Angeles County,
Norman Shapiro, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant Francisco Martinez.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant
and Appellant Henry Vides.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Appellants Henry Vides (Vides) and Francisco Martinez (Martinez) appeal
the judgments after their “open plea[s]” of no contest to a 2011 assault with a
firearm. (Pen. Code, § 245, subd. (a)(2).) 1 They also admitted the offense was
committed for the benefit of, at the direction of, and in association with a criminal
street gang. (§ 186.22, subd. (b)(1)(B).)
Before trial, the trial court denied their motion to suppress pursuant to
section 1538.5.
After indicating a sentence at the time of the pleas, the trial court sentenced
Vides to a three-year middle term in state prison and sentenced Martinez to an
four-year upper term in state prison. The five-year gang enhancement was
imposed and stayed.
CONTENTION
Appellants contend their motion to suppress should have been granted as
the prosecutor, despite the defense Harvey-Madden objections, failed to call as
witnesses at the hearing the officers who were the source of the detaining officer’s
information as to reasonable and probable cause. (People v. Madden (1970)
2 Cal. 3d 1017 (Madden); People v. Harvey (1958) 156 Cal. App. 2d 516 (Harvey).)
The contention lacks merit.
BACKGROUND
The evidence concerning the events of the shooting is taken from the trial
testimony of the victim adduced at trial prior to appellants’ midtrial pleas.
At about 1:00 a.m. on December 12, 2011, Christian Rodriguez
(Rodriguez) walked past a liquor store located at 3rd Street and Bonnie Brae
Avenue in Los Angeles. He was on the way to his parked car, which was on the
other side of a Laundromat in a parking lot. Rodriguez encountered Vides and
Martinez who were sitting in a “dark-colored” car with chrome rims with an air
1
All further statutory references are to the Penal Code unless otherwise
indicated.
2
scoop on its hood in the first parking lot he walked past, located between the
liquor store and the Laundromat. Vides and Martinez used their car to block
Rodriguez’s path along the sidewalk.
Vides, the passenger, asked Rodriquez whether he was an 18th Street gang
member. When Rodriguez replied, “No,” Vides inquired about whether
Rodriguez “bang[ed]” any “hood,” meaning a criminal street gang. When
Rodriguez replied in the negative, Vides called him names. Rodriguez challenged
Vides to get out of the car, but the youths did not respond. Rodriguez continued
walking in front of the Laundromat to his car and drove off.
The area where appellants confronted Rodriguez was the territory of the
18th Street gang. Rodriguez testified he was not gang-involved.
When Rodriguez drove off, he saw Vides tagging “M.S.,” the initials for
another criminal street gang, on a wall while Martinez acted as a lookout.
Appellants then got into their car and followed Rodriguez to a stop light. They
pulled up alongside Rodriguez and stopped on his right-hand side. Vides, the
driver, leaned back, and Martinez, the right front passenger, leaned forward.
Vides shot twice at Rodriguez through the open car windows. The gun clicked
and apparently misfired. Rodriguez sped off, then braked to let appellants drive
ahead of him. He followed his assailants a short distance and attempted to obtain
the number of the license plate on their car.
Rodriguez telephoned 9-1-1.
Los Angeles police officers arrived, and Rodriguez described his assailants’
car as a two-door Honda, which was dark–colored and either blue or black. It had
an after-market air scoop or intake duct on its hood and chrome rims. The gun
was “like black shiny silverfish . . . with a little circle thing in the middle.” He
further described the handgun as having “some sort of” a “round barrel-type
cylinder on it.” His assailants were male Hispanics in their mid-20’s. Both men
were “bald”; one man was slightly thinner and stockier than the other. One man
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wore a light-colored hoodie; the other was wearing a dark-colored hoodie.
Martinez had little hair on his chin.
The next evening, at about 11:15 p.m., Rodriguez saw his assailants again.
They were driving the Honda at the same location. He telephoned 9-1-1.
A few minutes later, Los Angeles police officers arrived at his location.
The officers drove Rodriguez several blocks away, and Rodriguez saw the Honda.
He identified the Honda as that used in the shooting. In separate field line-ups,
Vides and Martinez were removed from the police cars, and Rodriguez identified
appellants as his assailants.2
THE SEARCH AND SEIZURE MOTION
Before trial, appellants moved to suppress evidence pursuant to
section 1538.5.
1. The detention and search.
Los Angeles Police Officer Darius Trugman (Officer Trugman) was the
only witness who testified at the search and seizure hearing. He was a patrol
officer working the 3:30 p.m.-to-early-morning shift. At 11:15 p.m. on
December 12, 2011, he stopped a black Honda Civic with chrome rims and an
air scoop on its hood a half block north of 6th Street on Rampart Boulevard in
Los Angeles.
Officer Trugman testified he had stopped the Honda based on the
description of the vehicle and the suspects in a gang-related shooting. That
shooting had occurred shortly after midnight during his prior shift on that same
date, some 11 hours earlier. The early-morning shooting had occurred at 3rd
Street and Bonnie Brae Avenue, a half to three quarters of a mile from the
detention scene.
2
At the preliminary hearing, Rodriguez essentially testified to the same
course of events.
4
Officer Trugman described how that evening, he was on patrol on 6th
Street when he received yet another radio call concerning the shooting. Four to
five seconds after receiving the radio transmission, he and his partner turned right
onto Rampart Boulevard. When they turned the corner, Officer Trugman saw a
black Honda that was driving southbound turn out its lights midblock and pull to
the curb and park. The Honda matched the description of the vehicle used in the
shooting.
The officers drove past the Honda, made a U-turn, and pulled in behind it.
A number of police officers arrived at the location. They had the Honda’s two
occupants, Vides and Martinez, two male Hispanics, step out. The officers
initiated a “felony stop,” handcuffing appellants, and placing them into separate,
locked patrol cars.
While standing outside at the Honda, waiting for the arrival of the victim,
Rodriguez, for a field showup, Officer Espinoza observed what he believed to be a
cover for an apparent secret compartment in the Honda’s console. The cover was
ajar. Officer Espinosa brought his observations to Officer Trugman’s attention.
Officer Trugman also looked inside the front seat area of the Honda. He saw a
“dislodged part” of the vehicle between the floorboard and “the compartment.”
Officer Espinoza entered the Honda, checked the compartment and removed a
steel revolver with a wooden handle from the compartment. The cover to the
compartment had been ajar and in plain view, but the handgun was not visible to
the officers until it was removed from the compartment.
During the detention, the officers ascertained Vides had parked the Honda
in front of Martinez’s residence.
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2. The descriptions in the possession of Officer Trugman and his reasons
for the detention and the search.
During the hearing on the motion, Officer Trugman was asked to provide
the descriptions he had of the vehicle and the suspects prior to the detention.
Trial counsel objected the question called for hearsay, and the objection was
overruled. A few questions later, trial counsel explained that he was invoking the
Harvey-Madden rule, which required a further foundation. Trial counsel argued
the questions calling for the suspect descriptions constituted hearsay in the
absence of the prosecution having “verif[ied] the source of the information given
to this” police officer. The trial court overruled the objections, stating, “I believe
the foundation has been laid.”
Officer Trugman testified that before stopping the Honda, he had received
the following description of the vehicle: a “dark-color[ed] [two-door] Honda with
chrome rims and unique to the vehicle . . . [was] an intake system on the front of
the vehicle on hood.” The suspects were described as “[t]wo male Hispanics.”
The officer had initiated a felony stop because he believed that, based on the radio
call he had received during his prior shift and the most recent 11:15 p.m. radio
call, he had detained the suspects involved in the Rodriguez shooting.
Officer Trugman admitted that the description of the air scoop on the
Honda’s hood was not contained in the suspect descriptions broadcast over the
radio. However, he explained that the commencement of his current shift, during
roll call that afternoon, the specifics concerning the shooting were shared by the
responding officers with the other patrol officers. The responding officers,
Officers Clayton and Carrillo, also informed Officer Trugman that the Honda had
a unique after-market air scoop or air intake duct on its hood.
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Apart from the similarity to the descriptions of the shooting suspects,
Officer Trugman said he also regarded the driver’s conduct before parking on
Rampart Boulevard as odd. He said he had concluded that turning off the Honda’s
lights and then pulling to the curb was “unusual as a matter of driving safety and
the laws of the Vehicle Code.”
Additionally, the officer said that during his 10 years of experience as a
police officer, he had previously encountered hidden compartments in vehicles.
Such compartments were used to hide firearms and other contraband. When he
made the observation of the “dislodged part of the vehicle” between the floorboard
and “the compartment,” he believed he was observing a hidden compartment.
During cross-examination, Officer Trugman was more specific about the
timing and content of the information he received about the shooting. He said
during the 12:42 a.m. radio call, he was told there was a “ADW” in which the
officers, in their discussion with the victim, were told that two Hispanics had been
tagging “M.S.” (the initials representing the Mara Salvatrucha criminal street
gang) on a building next to the victim’s residence.
Trial counsel showed the officer the paper printouts containing the content
of the two radio calls. The initial 12:42 a.m. radio call included the information
the shooting was committed by two male Hispanics, 20 years old, in a black
Honda two door, who were armed with a gun. It also said the suspects were
“suspected M.S. gang members.” The subsequent 23:16 hours radio call,
broadcast just prior to the stop, said: “415 gang activity. Suspect vehicle
described as a two-door blue Honda Civic with chrome rims.”
Trial counsel pointed out there was no information in the radio calls
concerning the unique air scoop. Officer Trugman again explained that at the
3:30 p.m. roll call, he had read the police reports prepared by the responding
officers, which contained that information. And, at the 3:30 p.m. roll call, he
spoke to Officers Clayton and Carrillo concerning the shooting, and they
mentioned the air scoop. Officer Trugman acknowledged there was no reference
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to the air intake vent in Officers Clayton’s and Officer Carrillo’s initial police
report concerning the incident. But Officer Trugman replied that in the 23:40
hours December 12, 2011, investigative statement report there was a reference to
the air intake scoop. He then acknowledged that the latter report was filed a half
hour after Officer Trugman had initiated the felony stop.
3. The issues raised by counsel in argument.
The prosecutor argued reasonable cause for the detention and that the
officers had probable cause to search the Honda for evidence of the shooting,
especially in light of the officers’ observations of the apparent hidden
compartment in the Honda’s cab.
Trial counsel argued the descriptions of the vehicle and suspects were too
vague and generic to amount to reasonable and probable cause. The air scoop,
which the prosecution claimed was a unique after-market item, was not mentioned
in any of the officers’ communications or reports until after the detention was
initiated. Martinez’s trial counsel urged Officer Trugman’s testimony should be
stricken because the prosecutor had failed to call Officers Clayton and Carrillo
“to come and testify” to the source of the probable cause. The defense thus was
prevented from testing the credibility of, and from confronting, these source
officers.
4. The trial court’s ruling.
The trial court said the primary issue in the case was the validity of the
automobile search. It ruled there was reasonable cause for the brief detention
pending a victim identification. When Officers Trugman and Espinoza saw the
apparent hidden compartment inside the front seat area of the vehicle, they had
probable cause to believe the gun used in the shooting was inside the Honda, and
the automobile exception to the requirement of a warrant applied to the officers’
search. It denied the motion to suppress without commenting on the Harvey-
Madden issue.
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DISCUSSION
1. The standard of review.
The standard of review for the denial of a motion to suppress is well settled.
“We defer to the trial court’s factual findings, express or implied, where supported
by substantial evidence. In determining whether, on the facts so found, the search
or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal. 4th 354,
362; People v. Leyba (1981) 29 Cal. 3d 591, 596-597, fn. omitted.)
“There is, of course, no requirement that a trial court’s ruling on a
suppression motion be accompanied by ‘findings’ or even a statement of the
court’s inference from the evidence, views as to the applicable law, or reasons for
its ruling. [Citations.]” (People v. Manning (1973) 33 Cal. App. 3d 586, 559-600
(Manning).) “Generally, the ruling of a trial court upon a motion implies a finding
of fact favorable to the prevailing party on each ground or theory underlying the
motion. [Citation.] The implication applies specifically to rulings admitting or
excluding evidence. [Citations.]” (Id. at pp. 601-602.)
2. The applicable legal principles.
“ ‘An otherwise illegal arrest cannot be insulated from challenge by the
decision of the instigating officer to rely on fellow officers to make the arrest.’
(Whiteley v. Warden (1971) 401 U.S. 560, 568.) ‘[W]hile it may be perfectly
reasonable for officers in the field to make arrests on the basis of information
furnished to them by other officers, “when it comes to justifying the total police
activity in a court, the People must prove that the source of the information is
something other than the imagination of an officer who does not become a
witness.” ’ (Remers v. Superior Court [(1970)] 2 Cal. 3d 659, 666 [(Remers)],
quoting People v. Adkins (1969) 273 Cal. App. 2d 196, 198.) ‘To hold otherwise
would permit the manufacture of reasonable grounds for arrest within a police
department by one officer transmitting information purportedly known by him to
another officer who did not know such information, without establishing under
9
oath how the information had in fact been obtained by the former officer.’
(Remers, supra, at pp. 666-667.) ‘[W]hen an officer furnishes to another officer
information which leads to an arrest, the People must show the basis for the
former officer’s information.’ (Id. at p. 667.)” (In re Eskiel S. (1993)
15 Cal. App. 4th 1638, 1642-1643 (Eskiel S.); see also People v. Ramirez (1983)
34 Cal. 3d 541, 551 [recently affirming the validity of the Harvey-Madden rule in
the context of an arrest made on the basis of a recalled warrant].)
The Harvey-Madden rule also applies to establishing reasonable cause for a
detention. (Ojeda v. Superior Court (1970) 12 Cal. App. 3d 909, 920.)
3. The analysis.
In this contention, appellants concede they are not disputing the legality of
the detention or the search. (See Arizona v. Gant (2009) 556 U.S. 332, 346-347;
United States v. Ross (1982) 456 U.S. 798, 820-821 [under the automobile
exception, police who have probable cause to believe a lawfully stopped vehicle
contains evidence of criminal activity or contraband may conduct a warrantless
search of any area of the vehicle in which the evidence might be found].)
Appellants’ sole contention on appeal concerns whether the Harvey-Madden rule
applies to require the prosecution to call Officers Clayton and Carrillo as witnesses
at the hearing to testify as to the source of their information concerning the
description of the suspects and the suspects’ vehicle. This court concludes the
prosecution substantially complied with the Harvey-Madden rule.
At the outset, appellants’ comments in briefing urge that the trial court
made no ruling on his Harvey-Madden objections. However, the trial court
overruled both objections raised by appellants. And by denying the search and
seizure motion, it made an implied ruling against appellants concerning the
Harvey-Madden rule. (Manning, supra, 33 Cal.App.3d at pp. 599-602.)
10
It is apparent from the evidence adduced at the hearing that the source of
the information relied on by Officer Trugman was a known citizen victim. At the
hearing, appellants had the trial court consider the police reports prepared
concerning the shooting. We assume that the police reports contained information
regarding how Rodriguez had telephoned 9-1-1 on both occasions, once with his
description of the suspects and their vehicle, and the content of his statements to
the police on the early morning of the shooting.3 Further, at the hearing, Officer
Trugman mentioned in his testimony that he was aware that the source of Officers
Clayton’s and Carrillo’s information concerning the suspect and the Honda was
the victim of the “ADW.” Specifically, Officer Trugman testified that the
12:42 a.m. radio call informed him that an “ADW” had occurred in which “the
officers, in their discussion with the victim,” were advised that the victim had seen
“two male Hispanics tagging M.S. on a . . . building . . . .”
Thus, it was established at the hearing that the information relied upon by
Officer Trugman arose from a known and reliable source, a crime victim and had
originated outside of police channels. In these circumstances, there was no
possibility that the officers had manufactured reasonable or probable cause by use
of official channels. “When the judiciary can reasonably determine that no
evidence has been manufactured, there is no reason for strict compliance with the
letter of the ‘Harvey-Madden’ rule.” (In re Richard G. (2009) 173 Cal. App. 4th
1252, 1260.) Accordingly, the prosecutor was not required in this instance to call
the two responding police officers as witnesses at the hearing. (Accord, People v.
Johnson (1987) 189 Cal. App. 3d 1315, 1320 [the trial “court did not violate the
3
This court was unable to review the police reports prepared by Officers
Clayton and Carrillo concerning the victim and the victim’s description of the
suspect vehicle and his assailants. The record demonstrates the police reports
referred to during testimony and identified by reference as exhibits C and D were
not entered into evidence at the end of the hearing. After being identified, they
were returned to the respective parties who produced them at the hearing. The
parties did not seek to augment the appellate record with the police reports.
11
Harvey-Remers rule in relying on circumstantial evidence proving that the
information transmitted to the officers must have come from some source outside
the police department”]; People v. Orozco (1981) 114 Cal. App. 3d 435, 444
(Orozco) [“The whole point of the Remers rule is to negate the possibility that the
facts which validate the conduct of the officers in the field are made up inside of
the police department by somebody who is trying to frame a person whom he
wants investigated.”] .) Moreover, the descriptions of the suspects and Honda
were in part corroborated when the officers discovered a revolver in the hidden
compartment in the Honda. (Orozco, supra, at pp. 444-445 [original anonymous
telephone call of shooting corroborated by the detaining officer finding spent
cartridges at the scene of the detention].)
To the extent that the decision in Eskiel S., supra, 15 Cal. App. 4th 1638
requires strict compliance with the Harvey-Madden rule, we disagree with that
decision. 4
4
We note the trial court, the prosecutor and trial counsel were well aware
that Rodriguez was the source of the descriptions of the suspects and the suspect
vehicle. They had just addressed the defense section 995 motion some six days
before the motion to suppress. In the course of the section 995 motion, the same
bench officer read and considered the preliminary hearing transcript. At the
preliminary hearing, the victim, Rodriguez, had testified to the content of his two
9-1-1 calls and to speaking to the responding officers and giving them his
descriptions of the shooting suspects and the Honda with its unique air scoop.
Rodriguez also testified he had mentioned the Honda’s air scoop during the latter
of his 9-1-1 calls. Rodriguez’s testimony would have been adequate to satisfy the
Harvey-Madden rule had it been introduced into evidence at the suppression
hearing. (See Whiteley v. Warden, supra, 401 U.S. at pp. 564-565, 567-568.)
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DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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