People v. Scott ( 1993 )

Opinion

WOODS (Fred), J.

Convicted by jury of armed robbery (Pen. Code,¹ §§211, 12022.5) appellant contends the trial court erred in denying his suppression motion (§ 1538.5) and in admitting his misdemeanor conviction for impeachment purposes. We find no error and affirm the judgment.

Introduction

It is customary to now inform the reader of the “Facts and Proceedings Below,” that is, to provide a summary of the trial evidence and perhaps a procedural chronology. This summary and chronology enable the reader to know “what happened,” to become oriented, and to have a focus for the issues to be discussed.

Because we depart from this custom an explanation is in order.

Here, the dispositive issue has nothing to do with trial evidence. What we review is a ruling made before trial. To best review this ruling, we put aside the trial record and place ourselves in the position of the judge hearing the pretrial motion. As appellant correctly observes, “the only factual material properly before this court... [is the 14-page] record of the section 1538.5 hearing . . . .” (See, e.g., People v. Moreno (1992) 2 Cal.App.4th 577, 580 [3 Cal.Rptr.2d 66].)

Apart from this “14-page record” of the hearing, which we next consider, the trial court only knew that appellant had been charged with armed robbery (the information so stated) and had filed a section 1538.5 suppression motion which was to be “based upon such evidence as may be introduced at the hearing.”

We now consider the record of the suppression hearing.

Section 1538.5 Suppresion Hearing

On Tuesday, December 10, 1991, at 11:25 a.m., the trial court called the instant matter, the attorneys identified themselves, and defense counsel stated “we have a 1538.5 to resolve before starting the jury selection.”

The prosecutor responded: “It is the People’s position that the defendant does not have standing to contest the recovery of any evidence from the apartment of this other person.”²

Defense counsel replied: “I would offer a stipulation there was no arrest warrant or search warrant in this case.”

The court then said “all right” but the prosecutor, rather than accept or reject the offered stipulation, indicated the tendered offer was premature. He stated, “again, that does not become an issue until the defendant has established standing.”

We interrupt the section 1538.5 colloquy to observe the following: Before Proposition 8 (Cal. Const, art. I, § 28, subd. (d)) abrogated California’s vicarious standing rule (In re Lance W. (1985) 37 Cal.3d 873, 879 [210 Cal.Rptr. 631, 694 P.2d 744]), People v. Carson (1970) 4 Cal.App.3d 782, 786 [84 Cal.Rptr. 699] established that “the initial burden of introducing or producing evidence to make out [a] prima facie case of illegality is on the defendant movant.” After Proposition 8, with the burden on a defendant to “not merely [prove] that someone’s Fourth Amendment rights had been violated ... but that [his] Fourth Amendment rights had been violated (People v. Thompson (1990) 221 Cal.App.3d 923, 936 [270 Cal.Rptr. 863]), the “who goes first” question again became an open one.

People v. Johnson (1984) 162 Cal.App.3d 1003 [209 Cal.Rptr. 78] suggests the defendant movant, who must establish standing, goes first. But People v. Contreras (1989) 210 Cal.App.3d 450 [258 Cal.Rptr. 361] holds that the order of proof is a matter of trial court discretion. (Id., at p. 456.)

Defense counsel facilitated matters. He agreed to go first, to begin the hearing by establishing “standing.” He said, “I am ready to proceed on if’ and the trial court agreed.

Thus, to recapitulate, before the first witness was called none of the following had been established: Whether a crime had been committed; whether an arrest had been made; if made, what information the arresting officer possessed; whether the officer had an arrest warrant; whether a search occurred; if so, where; whether a seizure had occurred; if so, whether the search or seizure was pursuant to a search warrant.

Defense counsel began the hearing by calling an Officer Denton. He testified to the following: he was present when appellant was arrested; he, Officer Denton, had “moved in to the apartment[³] to effect an arrest”; appellant was then “sitting on a couch and he had one leg up on an ottoman adjacent to the couch”; he ordered appellant off the couch and to “get up against the wall”; “at some time after that” he recovered “a gun under the ottoman that his leg [had been] on.”

Having elicited this testimony, defense counsel asserted that “standing” had now been established. He stated: “Well, it would be my position that if a person is ordered to move and get out of the way so that the area the person is sitting in can be searched,[⁴] then that person has a legitimate expectation of privacy . . . .”

A colloquy followed. Defense counsel elaborated, saying “if we were complaining about the search of the apartment itself, bedroom or something like that, we might have problems with standing, but the area that was searched ... is the immediate area underneath where my client was sitting.”

When the trial court expressed uncertainty, stating “I can’t rule on that, because I don’t know of any authority” defense counsel said he would call further witnesses.

The trial court then asked the prosecutor if he had any questions (cross-examination) of Officer Denton before defense counsel called his next witness.

The prosecutor declined, responding: “I agree with the court at this point.”

The court, indicating the matter was not yet settled, told the prosecutor that defense counsel “is going to try to continue to establish . . . standing so we will just have to listen to it. I can’t prejudge it.”

Defense counsel then called appellant. Appellant testified to the following: He had known a Mr. Lichter for about a month or two when, on May 20, the day before his arrest, Mr. Lichter invited him to sleep over and then, the next day, watch the Lakers’ game on television. He did so, sleeping on the couch. The next day, he was sitting on the couch with 2 other people, and had been sitting there for about 15-20 minutes. He had not put anything under the ottoman, did not know anything was under the ottoman, and didn’t remember having his leg on the ottoman. He knew nothing about a gun being recovered from under the ottoman.

This was the entirety of the evidence. Based upon this evidence defense counsel reasserted his “standing” argument, that appellant “has a right to have an expectation of privacy in his immediate presence” or “whether or not the officer had a right to get him off the couch and move him so he can search the area underneath Mr. Scott [appellant]. (See fn. 4.)

It was this contention upon which the trial court ruled. The trial court denied the motion because appellant, a guest in someone else’s apartment, had no legitimate expectation of privacy under an ottoman when he had put nothing under it and disclaimed any interest in what was under it. The trial court’s ruling was correct. (Raleas v. Illinois (1978) 439 U.S. 128, 148-149 [58 L.Ed.2d 387, 403-405, 99 S.Ct. 421].)

Having detailed the evidence, the issue, and the narrow focus of the section 1538.5 hearing, we now state appellant’s contention on appeal: The trial court erred in ruling appellant lacked standing to object to the arresting officer’s illegal entry.

As is plain from our discussion, no such objection was made in the trial court. Probable cause to arrest appellant, exigent circumstances justifying a warrantless entry, possession of an arrest or search warrant, and other related matters, were never reached. The parties, with court approval, chose to first address appellant’s claimed privacy interest in what might be under a nearby ottoman.⁵

Having made no such objection in the trial court appellant may not complain on appeal.⁶ (Evid. Code § 353; People v. Gordon (1990) 50 Cal.3d 1223, 1255 [270 Cal.Rptr. 451, 792 P.2d 251]; People v. Clark (1992) 3 CalAth 41, 125-126 [10 Cal.Rptr.2d 554, 833 P.2d 561]; People v. Mickey (1991) 54 Cal.3d 612, 664 [286 Cal.Rptr. 801, 818 P.2d 84].)

Impeachment With Misdemeanor Conviction

Appellant contends the trial court erred in ruling his misdemeanor conviction was admissible for impeachment purposes. Appellant is mistaken.

In People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 814 P.2d 938] our Supreme Court ruled that evidence a witness had committed a misdemeanor involving dishonesty may be admissible for impeachment but the misdemeanor conviction was hearsay. Since appellant, in the trial court, failed to object to his misdemeanor conviction on hearsay grounds, he may not now object. (Evid. Code § 353; People v. Wheeler, supra, at p. 300.)

Disposition

The judgment is affirmed.

Lillie, P. J., concurred.

1 Statutory references, unless otherwise noted, are to the Penal Code.

2 Appellant’s written motion referred to “an illegal entry into defendant’s home” but also more vaguely, referred to an apartment 313 where he was [apparently] one of three Black men seated on a couch at the time of arrest. Of course, the motion was not “evidence.” (Evid. Code, § 140.)

3 No date, time or place was established.

4 No evidence supported this claim. Officer Denton testified his purpose in entering the apartment and. in ordering appellant off the couch was to arrest appellant. Although extraneous to our present discussion, we note that according to Officer Denton’s trial testimony there was no search at all. He testified he orderd appellant and the other two men sitting on the couch to get against the wall and in order to clear a path for them he kicked the ottoman aside. In doing so a gun, which had been under the ottoman, was exposed.

5 As Professor LaFave insightfully observed, “in determining . . . whether a defendant has standing to seek exclusion of certain evidence on Fourth Amendment grounds, it is critical that the precise police conduct being objected to be properly identified, for this may itself turn out to be determinative on the standing issue.” (4 LaFave, Search & Seizure (2d ed. 1987) §11.3, p. 282.)

6 We do not doubt, as appellant urges, that if an officer illegally enters a residence to arrest a guest of the residence owner, the guest arrestee has standing to object to the illegal entry. (Minnesota v. Olsen (1990) 495 U.S. 91 [109 L.Ed.2d 85, 110 S.Ct. 1684].)