People v. Togiai CA1/5

Filed 3/17/23 P. v. Togiai CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A161507
Plaintiff and Respondent,
v. (San Francisco County
Super. Ct. No. SCN232060)
PETER TOGIAI,
Defendant and Appellant.
Peter Togiai (appellant) appeals his conviction, following a jury trial,
for attempted second degree robbery (Pen. Code, §§ 211, 664).1 He raises a
number of challenges, including that his trial counsel was constitutionally
ineffective in failing to renew a motion to suppress. We agree with this
ineffective assistance of counsel claim and reverse.
BACKGROUND
Before the preliminary hearing, appellant filed a motion to suppress all
evidence collected as a result of his detention and arrest. After hearing
1 All undesignated section references are to the Penal Code.
1
evidence on the motion to suppress at the preliminary hearing, the court
denied the motion.
Appellant was charged by amended information with attempted
carjacking (§§ 215, subd. (a), 664) and second degree robbery (§ 211).
Appellant’s first trial ended in a mistrial after the jury deadlocked on both
counts. Prior to the second trial, the robbery charge was reduced to
attempted robbery. At the second trial, the jury found appellant guilty of
attempted robbery but deadlocked on the attempted carjacking count, which
the prosecution then dismissed.
The facts underlying the conviction are not relevant to this appeal
except that, as the People do not dispute, the evidence challenged by the
motion to suppress was significant in linking appellant to the crime.
DISCUSSION
Appellant argues the trial court erred in denying his motion to
suppress at the preliminary hearing because the prosecution failed to provide
nonhearsay evidence establishing probable cause for a warrantless vehicle
stop that led to his arrest, in violation of the Harvey-Madden rule (People v.
Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970)
2 Cal.3d 1017 (Madden)).2 The People concede that the denial of the motion
to suppress at the preliminary hearing was in error based on the evidence
presented, but contend the challenge is forfeited because appellant failed to
renew the motion to suppress before trial.
2“ ‘[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.” ’ ” (Madden, supra,
2 Cal.3d at p. 1021.)
2
Appellant disputes the forfeiture, but argues in the alternative that if
the challenge is forfeited, his trial counsel was constitutionally ineffective in
failing to renew the motion. Appellant argues the failure was prejudicial
because evidence on the renewed motion would have been statutorily limited
to the preliminary hearing transcript and evidence that could not reasonably
have been presented at the preliminary hearing motion to suppress (see
§ 1538.5, subd. (i)). The People argue the prosecutor reasonably understood
that appellant’s motion to suppress did not raise a Harvey-Madden challenge
as to the vehicle stop, but instead raised it only as to other challenged
searches and seizures; nonhearsay evidence justifying the vehicle stop
therefore could not reasonably have been presented at the preliminary
hearing motion to suppress and so could have been presented on a renewed
motion; and, because the record is silent as to whether new evidence could
have satisfied Harvey-Madden, appellant cannot establish ineffective
assistance of counsel. The People concede, however, that if additional
evidence would have been precluded at a hearing on a renewed motion, the
renewed motion would have been successful. The People further concede, as
noted above, that if the evidence resulting from appellant’s arrest had been
suppressed, it is reasonably probable appellant would have had a more
favorable outcome at trial.
I. Additional Background
Appellant’s written suppression motion stated appellant was arrested
after police pulled over a suspect in an unrelated robbery investigation and
detained appellant, who was in the passenger seat of the vehicle. Police
searched appellant’s bag, found a firearm, and arrested appellant without a
warrant. The motion identified the searches and seizures being challenged
as “1) The traffic stop; [¶] 2) The detention; [¶] 3) The search of the bag; [¶] 4)
3
The arrest.” Appellant’s motion objected generally “to the introduction of any
evidence which violates the principles of Harvey/Madden and progeny.” The
prosecutor’s written opposition argued, with respect to the stop of the vehicle,
solely that appellant lacked standing to challenge the stop. 3 The opposition
argued the prosecution could “easily satisfy [appellant’s] Harvey-Madden
objection because the officers involved in the investigation are available to
testify.”
At the evidentiary hearing, Sergeants Matthew Sullivan and Patrick
Griffin testified that they were conducting surveillance of a man named
James Brown in order to arrest him. The officers did not have a warrant for
Brown’s arrest. Sullivan testified another officer told them—based on
information received from yet another officer—that Brown was a suspect in
an unrelated robbery investigation. Defense counsel objected to these
questions on hearsay and “Harvey-Madden” grounds. The prosecutor
represented the testimony was for “the effect on this officer” and the court
allowed it “not ... for the truth of the matter, just to explain what the officer is
doing.”
When Sullivan and Griffin pulled over Brown’s vehicle to arrest him,
appellant was in the passenger seat. Sullivan asked appellant to “sit tight”
while Brown was removed from the vehicle, then told appellant to step out of
the vehicle. Appellant was wearing a bag that Sullivan had reason to believe
possibly held a firearm and, when Sullivan conducted a pat search of the bag,
he could feel a firearm inside. Sullivan took appellant into custody for
unlawfully possessing a firearm.
We omit background facts with respect to the other challenged
3
searches and seizures.
4
Following the presentation of evidence, defense counsel argued
appellant had standing to challenge the stop of Brown’s vehicle and the
prosecution had not established probable cause for the stop. The prosecutor
argued, “There was probable cause to arrest Mr. Brown. Trying to assert and
undercut the probable cause for Mr. Brown’s arrest is asserting the Fourth
Amendment rights of another party. ... [¶] ... [S]o that’s why the People have
argued there isn’t standing at all.” Later during arguments, the court
characterized the issue as, “if [defense counsel] is correct that a defendant
has standing to challenge the stop of the vehicle, then have the People
presented sufficient evidence ... for the probable cause through the testimony
of Sergeant Sullivan? Because none of that came in for the truth of the
matter asserted.” The prosecutor responded, “Right. And so that’s why my
argument is that, by making this argument, the defense is trying to assert
the Fourth Amendment rights of Mr. Brown....”
When arguments continued the following day, the prosecutor reiterated
her position that appellant lacked standing to challenge the stop of Brown’s
vehicle, then added, “The problem for the People, though, is a notice issue as
far as the motion to suppress as well. Given that the defense is arguing that
we haven’t presented sufficient evidence of a probable cause for Brown, none
of this was noticed in the defense papers. [¶] So those would require the
People to bring in additional witnesses ....” The prosecutor continued, “If the
defense thinks that there needed to be more witnesses, if the Court thinks
there needed to be more witnesses for the People, I can bring those parties
in.”
The court found appellant lacked standing to challenge the stop of
Brown’s vehicle and, even if appellant had standing, the prosecution
5
established probable cause. The court rejected appellant’s other arguments
and denied the motion to suppress.
II. Forfeiture
As noted above, the People concede the trial court’s ruling on the
motion to suppress was in error based on the evidence presented at the
hearing.4 However, the People argue that under People v. Lilienthal (1978)
22 Cal.3d 891 (Lilienthal), appellant forfeited any challenge to the trial
court’s ruling by failing to renew the motion to suppress after the preliminary
hearing. Appellant argues Lilienthal is no longer good law or, in the
alternative, any forfeiture should be excused. We find the challenge forfeited.
A. Lilienthal
“A defendant can obtain appellate review of a search and seizure issue
only if ‘at some stage of the proceedings prior to conviction he or she has
moved for the return of property or the suppression of the evidence.’
(§ 1538.5[, subd.] (m).) In Lilienthal, a majority of our Supreme Court
concluded this condition was not satisfied simply because the defendant
moved to suppress evidence at the preliminary examination, even though the
preliminary examination might otherwise appear to be ‘some stage of the
proceedings prior to conviction.’ ” (People v. Richardson (2007)
4 As the People properly concede, appellant had standing to challenge
the stop of Brown’s vehicle (Brendlin v. California (2007) 551 U.S. 249, 259
[“a passenger may bring a Fourth Amendment challenge to the legality of a
traffic stop”]), and the evidence presented at the hearing did not establish
probable cause that Brown committed the unrelated robbery (People v.
Johnson (1987) 189 Cal.App.3d 1315, 1319 [“ ‘ “[I]f the detaining officer
himself does not have personal knowledge of facts justifying the detention,
but acts solely on the basis of information or direction given him through
police channels, the prosecution must establish in court ... evidence showing
that the officer who originally furnished the information had probable cause
to believe that the suspect had committed a felony....” ’ ”]).
6
156 Cal.App.4th 574, 582–583 (Richardson).) Instead, to obtain appellate
review, the issue must “be raised in the superior court either by way of a
renewed motion to suppress under subdivision (i) of section 1538.5 or by way
of a motion to set aside the information under section 995.” (Richardson, at
p. 583.)
Appellant argues Lilienthal issued before municipal courts and
superior courts were unified, and following unification the case is not or
should not be good law. (See Richardson, supra, 156 Cal.App.4th at p. 586
[“Because preliminary examinations were traditionally conducted by
municipal court judges sitting as magistrates, the elimination of the
municipal court raised the idea that the basis for the Lilienthal rule had
disappeared along with the municipal court.”].) The claim has been squarely
rejected: “[T]he consensus is that the Lilienthal rule continues to apply even
in the wake of trial court unification because that rule never rested on the
distinction between the municipal court and the superior court; rather, it
rests on the distinction between magistrates and superior court judges—a
distinction that remains valid even following unification.” (Richardson, at
p. 589; see also id. at pp. 586–588 [discussing cases].) We agree with and
follow these cases.
Appellant’s reliance on People v. Superior Court (Jiminez) (2002)
28 Cal.4th 798 is unavailing. In that case, the Supreme Court construed a
statute authorizing the prosecution to relitigate, under certain
circumstances, a granted motion to suppress provided it be “ ‘heard by the
same judge who granted the motion.’ ” (Id. at p. 805 [quoting § 1538.5,
subd. (p)].) The court held magistrates were “judges” for purposes of this
provision: all magistrates are judges, and the legislative purpose of the
statute applies equally to magistrates as to other judges. (Id. at p. 809.)
7
Although the Supreme Court quoted with approval a Court of Appeal case
stating section 1538.5, subdivision (j) “ ‘indicates judges and magistrates are
to be viewed identically’ ” (Jiminez, at p. 809), another part of the opinion
emphasized the general rule of superior court review of magistrate actions.
(Id. at p. 804 [trial court unification did not “change the previous procedures
whereby the superior court reviews a magistrate’s actions”]; see also People v.
Henson (2022) 13 Cal.5th 574, 593 [“both before and after court unification,
the magistrate did not preside as the judge of any court, and ... did not
exercise trial jurisdiction”].)
B. Futility
Appellant alternatively contends forfeiture should be excused because a
renewed motion would have been futile. He points to an exchange before his
second trial in which the trial court, during a discussion about prior motions,
stated, “Because this is a new trial, as I see it, any previous trial motions may
have to be relitigated. I don’t know that they are the law of the case. The
way the preliminary hearing motion to suppress would be the law of the case.
Any comments on what I just said?” Defense counsel did not dispute the
court’s characterization of the preliminary hearing suppression motion ruling
as “law of the case.”5
“ ‘Reviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile....’ ” (People
5 “ ‘ “The doctrine of ‘law of the case’ deals with the effect of the first
appellate decision on the subsequent retrial or appeal: The decision of an
appellate court, stating a rule of law necessary to the decision of the case,
conclusively establishes that rule and makes it determinative of the rights of
the same parties in any subsequent retrial or appeal in the same case.” ’ ”
(Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 612.) We agree with
appellant that the court’s reference to law of the case indicated its
understanding that the prior ruling on the motion to suppress was binding.
8
v. Gomez (2018) 6 Cal.5th 243, 286–287.) Here, the trial court offered its
preliminary thoughts and invited counsel’s “comments.” The court was
clearly inviting argument and therefore signaling the tentative nature of its
statements; indeed, the prosecutor argued pretrial motions from the first trial
should not be relitigated before the second trial. The court’s comments did
not indicate a defense objection would have been futile. Moreover, appellant
points to no similar statement prior to his first trial, presided over by a
different bench officer. Appellant’s authority is distinguishable. (People v.
Johnson (2018) 21 Cal.App.5th 1026, 1031, fn. 5 [defendant pled guilty and
“trial court assured [the defendant] before he entered his plea that he would
be able to appeal the ruling on the suppression motion”]; People v. Hansel
(1992) 1 Cal.4th 1211, 1215–1216 & fn. 4 [prosecution’s failure to make offer
of proof excused because, when prosecution attempted to recall a witness at a
renewed motion to suppress, trial court ruled the witness could be recalled
only if the defendants presented new evidence, rendering any offer of proof
futile]; People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn. 27 [forfeiture
excused because trial court “made clear” its opinion such that “an objection by
defense counsel would almost certainly have been overruled”]; People v. Boyer
(1989) 48 Cal.3d 247, 271, fn. 13, disapproved of on another ground by People
v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [defense counsel’s failure to
renew pretrial motion to exclude evidence when evidence was offered at trial
was excused because basis for the pretrial ruling made clear that “any
renewed objection would have been entirely futile”].)
III. Ineffective Assistance of Counsel
Appellant next argues that, if his challenge to the motion to suppress is
forfeited, his trial counsel was prejudicially ineffective for failing to renew the
motion to suppress before trial.
9
“ ‘To establish a violation of the constitutional right to effective
assistance of counsel, a defendant must show both that his counsel’s
performance was deficient when measured against the standard of a
reasonably competent attorney and that counsel’s deficient performance
resulted in prejudice to defendant in the sense that it “so undermined the
proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” [Citation.] ... If the record contains no
explanation for the challenged behavior, an appellate court will reject the
claim of ineffective assistance “unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory
explanation.” ’ ” (People v. Hart (1999) 74 Cal.App.4th 479, 486.) There could
be “no sound tactical reason for failing to pursue a meritorious motion which,
had it been properly granted, would have suppressed most of the evidence
against defendant and perhaps resulted in a dismissal of the charges.”
(People v. Hinds (2003) 108 Cal.App.4th 897, 902.)
To establish prejudice “[w]here a defendant claims ineffective
assistance based on counsel’s failure to litigate a Fourth Amendment claim,”
a defendant must “ ‘prove that [the] Fourth Amendment claim is meritorious
and that there is a reasonable probability that the verdict would have been
different absent the excludable evidence.’ ” (People v. Caro (2019) 7 Cal.5th
463, 488.) If the record is silent as to whether the Fourth Amendment claim
would have been successful, prejudice cannot be established. (Id. at p. 489
[because “the record is inconclusive” as to the legality of the search, the
defendant “has not carried her burden to ‘establish that [her] Fourth
Amendment claim ha[d] merit’ ”].)
The record contains no explanation for defense counsel’s failure to
renew the motion to suppress before trial. However, as noted above, it is
10
undisputed that, had appellant prevailed on a renewed motion to suppress, it
is reasonably probable the outcome of the trial would have been more
favorable to him. Accordingly, if a renewed suppression motion would have
been granted, counsel could have no tactical reason for failing to make it and,
further, prejudice will be established.
We thus turn to whether a renewed suppression motion would have
been successful. The People concede the evidence presented at the
preliminary hearing suppression motion failed to establish nonhearsay
probable cause for the stop of Brown’s car. However, the record does not
indicate whether this nonhearsay probable cause could have been established
had the prosecution presented additional witnesses. Therefore, whether a
renewed suppression motion would have been successful hinges on whether
the prosecutor would have been able to call new witnesses at a hearing on the
renewed suppression motion.
This issue is governed by section 1538.5, subdivision (i), which
provides, as relevant here, “If the property or evidence obtained relates to a
felony offense initiated by complaint and the defendant was held to answer at
the preliminary hearing, ... the defendant shall have the right to renew or
make the motion at a special hearing relating to the validity of the search or
seizure .... [I]f the offense was initiated by complaint and no motion was
made at the preliminary hearing, the defendant shall have the right to fully
litigate the validity of a search or seizure on the basis of the evidence
presented at a special hearing. If the motion was made at the preliminary
hearing, unless otherwise agreed to by all parties, evidence presented at the
special hearing shall be limited to the transcript of the preliminary hearing
and to evidence that could not reasonably have been presented at the
11
preliminary hearing, except that the people may recall witnesses who
testified at the preliminary hearing.” (Italics added.)
The question is therefore whether nonhearsay evidence supporting
probable cause to stop Brown’s vehicle “could not reasonably have been
presented at the preliminary hearing.” The People argue it could not have
been because the prosecutor “reasonably believed at the preliminary hearing”
that appellant’s Harvey-Madden challenge was not being made as to the
vehicle stop, such that evidence responding to such a challenge was
“irrelevant.”
As an initial matter, we query the People’s construction of the statutory
phrase. “[C]ould not reasonably have been presented” appears, on its face, to
relate to the availability of witnesses or other evidence. (People v. Bennett
(1998) 68 Cal.App.4th 396, 406 (Bennett) [“If the prosecution is willing to
submit on the preliminary hearing transcript, and there is no evidence which
was unavailable at that hearing, the trial court is obliged to base its ruling on
the contents of that document alone.” (Italics added)]; see also Sen. Com. on
Judiciary, Rep. on Assem. Bill No. 2328 (1985–1986 Reg. Sess.), p. 4, italics
added [amendment adding provision “would preclude the defense from
receiving two hearings unless new evidence existed”].)6 Thus, a reasonable
interpretation of section 1538.5, subdivision (i), would appear to mean the
evidence was unavailable despite reasonable efforts.7 In any event, we need
6 The provision was added “ ‘[t]o eliminate the “duplicat[ive] litigation
of issues and repeat testimony ...” ’ that characterized the procedures
governing suppression motions in the superior court before” the amendment,
when renewed suppression motions were conducted de novo. (Bennett, supra,
68 Cal.App.4th at pp. 404–405; see also People v. Ramsey (1988)
203 Cal.App.3d 671, 677–678.)
7We note that if a defendant failed to advance a theory at the
preliminary hearing motion to suppress, the defendant would be precluded
12
not decide the issue because, even under the People’s construction of the
statute, any actual belief of the prosecutor that appellant was not raising the
argument here would not be reasonable.
The People argue the prosecutor held such a reasonable belief because
appellant failed to provide notice he was raising the challenge. “[W]hen
defendants move to suppress evidence, they must set forth the factual and
legal bases for the motion, but they satisfy that obligation, at least in the first
instance, by making a prima facie showing that the police acted without a
warrant. The prosecution then has the burden of proving some justification
for the warrantless search or seizure, after which, defendants can respond by
pointing out any inadequacies in that justification. [Citation.] Defendants
who do not give the prosecution sufficient notice of these inadequacies cannot
raise the issue on appeal.” (People v. Williams (1999) 20 Cal.4th 119, 136
(Williams).)
“[O]nce the prosecution has offered a justification for a warrantless
search or seizure, defendants must present any arguments as to why that
justification is inadequate. [Citation.] ... [I]f defendants detect a critical gap
in the prosecution’s proof or a flaw in its legal analysis, they must object on
that basis to admission of the evidence or risk forfeiting the issue on appeal.”
(Williams, supra, 20 Cal.4th at p. 130.) “[I]n specifying the inadequacy of the
prosecution’s justifications, defendants do not have to help the prosecution
from advancing that theory at a renewed motion, such that the prosecutor’s
failure to present available evidence relevant to that theory at the
preliminary hearing motion would not be prejudicial. (See Bennett, supra,
68 Cal.App.4th at p. 407 [“[A] defendant who has sought the suppression of
evidence at his or her preliminary hearing, who then seeks to renew that
motion in the superior court, is not entitled to advance theories at the second
hearing that were not raised and litigated during the first.”].)
13
step-by-step to make its case. The degree of specificity that is appropriate
will depend on the legal issue the defendant is raising and the surrounding
circumstances. Defendants need only be specific enough to give the
prosecution and the court reasonable notice. Defendants cannot, however,
lay a trap for the prosecution by remaining completely silent until the appeal
about issues the prosecution may have overlooked.” (Id. at pp. 130–131.)
Appellant provided adequate notice.8 In counsel’s declaration in
support of appellant’s motion to suppress, “[t]he traffic stop” was identified as
one of the challenged searches and seizures. The prosecution’s written
opposition makes clear that it understood the stop was being challenged, but
the opposition relied solely on the argument that appellant lacked standing to
challenge it. Appellant also provided notice that he was challenging hearsay
evidence as the basis for establishing probable cause for the stop: in addition
to the general Harvey-Madden objection in his written motion, he raised
hearsay objections and explicitly stated “Harvey-Madden” as a basis for the
objection when evidence about the Brown investigation was presented at the
hearing. This amply satisfies Williams’s requirement that, “if defendants
detect a critical gap in the prosecution’s proof ... , they must object on that
basis to admission of the evidence....” (Williams, supra, 20 Cal.4th at p. 130.)
We note further that, assuming the prosecutor actually believed
appellant was not challenging the vehicle stop on Harvey-Madden grounds,
on this record such an actual belief would not be reasonable. First, as
discussed ante, appellant provided clear notice that he was raising this
challenge. Second, defense counsel raised “hearsay” and “Harvey-Madden”
8 Because we find appellant provided notice, we reject the People’s
contention that appellant’s Harvey-Madden challenge to the vehicle stop is
forfeited for this additional reason.
14
objections to testimony during the hearing about the Brown investigation.
Finally, the trial court framed the issue as whether, if appellant had standing
to challenge the stop, the prosecution established probable cause since none
of the evidence about probable cause to arrest Brown was admitted for the
truth. In response to the court’s characterization of the issue, instead of
seeking to reopen evidence to fill this evidentiary gap, the prosecutor simply
doubled down on her reliance on appellant’s lack of standing. (Cf. Williams,
supra, 20 Cal.4th at p. 134 [“The trial court’s discussion of that issue gave the
prosecution sufficient notice of at least that possible basis for the motion to
suppress, and the prosecution could have sought leave to offer additional
evidence at that point.”].) Thus, even if the prosecutor actually
misunderstood appellant’s argument, such a misunderstanding would not
have been reasonable.
“Ideally, every suppression motion should be accompanied by a
complete record that clearly reveals the circumstances of the case and makes
the validity of the officers’ actions easy to discern. But the fact of the matter
is, even when the record made during the preliminary hearing is ‘sparse,’ the
trial court has no authority to carve out exceptions to the controlling statute.”
(Bennett, supra, 68 Cal.App.4th at p. 406; see also id. at p. 405 [“The trial
court has no statutory or inherent authority to enlarge the scope of the
hearing on its own motion.”].) We conclude the People could not have called
new witnesses on a renewed motion to suppress. The People concede that,
without the ability to call new witnesses, a renewed motion would have
properly been granted and it is reasonably probable the outcome of the trial
would have been more favorable to appellant. For this reason, there is no
reasonable tactical explanation for trial counsel’s failure to renew the motion
15
and appellant has established prejudice. We will reverse appellant’s
conviction.9
DISPOSITION
The judgment is reversed and remanded for further proceedings not
inconsistent with this opinion.
9 Because of this conclusion, we need not and do not decide appellant’s
separate claims of Miranda violation and juror bias. In a separate petition
for writ of habeas corpus, case No. A166059, appellant raises his ineffective
assistance of counsel claim. We have denied that petition as moot by
separate order filed this date.
16
SIMONS, Acting P. J.
We concur.
BURNS, J.
LANGHORNE, J.*
(A161507)
* Judge of the Napa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
17