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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Anthony Duane PERRY et al., Defendants and Appellants.

No. C022942.

Decided: June 30, 1997

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Shirley A. Nelson, Supervising Deputy Attorney General and Laura I. Heidt, Deputy Attorney General, for Plaintiff and Respondent. Tami J. Buscho, Sacramento and John Ward, Berkeley, by appointment of the Court of Appeal, for Defendants and Appellants.

A jury convicted defendants Anthony Duane Perry and Andrecka Donean Massey of possessing cocaine base for sale (Health & Saf.Code, § 11351.5), and acquitted two codefendants of the same offense.2  It also convicted the defendants of possessing marijuana for sale.  (Id., § 11359.)   Defendant Perry admitted he had two prior convictions for “serious” felonies.   (Pen.Code, § 667, subd. (d) [undesignated section references will be to this code].)   The court ordered probation for defendant Massey and concurrent prison terms of 25 years to life for defendant Perry.

On appeal, defendant Massey contends her codefendants should not have been allowed to introduce evidence which she successfully moved to suppress;  in the published portion of the opinion, we reject this claim.   Both defendants also argue the court erred in denying their severance motions, both defendants attack the pattern instruction defining reasonable doubt, defendant Perry claims the recidivist sentencing scheme violates the separation of powers, and defendant Perry argues he cannot be subjected to a second restitution fine.   The Attorney General concedes the trial court erred in imposing a second restitution fine.   With that modification, we shall affirm.


The nature of the defendants' contentions does not require us to recount the evidence at trial extensively.   In May 1994, defendant Perry told his parole officers he lived at a residence in Rancho Cordova.   As far as the parole officers were aware, defendant Perry lived there with his girlfriend, defendant Massey.   In March 1995, based on reports of drug-dealing, the parole officer and sheriff's deputies conducted a search of the residence pursuant to the condition of defendant Perry's parole.   Defendant Massey and the other codefendants were in the living room;  defendant Perry was in the bedroom.   The searchers found contraband in film canisters in the living room, in a plant in the dining room, and in the bedroom on a shelf and in an open handbag.   Other indicia of drug-dealing were also in the bedroom.



Prior to trial, defendant Massey moved to suppress (inter alia ) a note (apparently regarding a drug transaction) found in the pocket of a purple woman's jacket in the garage.   She argued the search of the home was based on the parole status of defendant Perry and the officers had no reasonable belief the jacket belonged to him.3  The trial court granted her motion.

The prosecutor represented he did not plan to introduce the note against defendant Massey's codefendants.   However, the lawyers for both defendant Perry and another codefendant asserted they intended to introduce the note in their own behalf.

The court later ruled in connection with defendant Massey's motion for severance that the note could be introduced by her codefendants.   At the outset of trial, defendant Massey again objected to the use of the note by her codefendants;  the court reiterated its prior ruling.   One of the acquitted codefendants introduced the note, on which the prosecution then relied in closing argument as establishing the guilt of defendant Massey.

Citing James v. Illinois (1990) 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 and related precedent, defendant Massey contends the exclusionary rule does not countenance the use of illegal evidence by her codefendant.   She also claims this violates section 1538.5.

“The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights.”  (Stone v. Powell (1976) 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067.)   It is not a constitutional right, but merely a judicially created remedy.  (Ibid.) Because the exclusionary rule exacts “substantial social costs” by interfering with the truth-finding process and releasing guilty defendants (United States v. Leon (1984) 468 U.S. 897, 907, 104 S.Ct. 3405, 3412, 82 L.Ed.2d. 677), courts must determine whether application of the rule in a particular context would result in sufficiently appreciable deterrence to outweigh these costs.  (Id. at p. 909, 104 S.Ct. at p. 3413.)  “[T]he policies behind the exclusionary rule are not absolute.   Rather, they must be evaluated in light of competing policies.”  (Stone, supra, 428 U.S. at p. 488, 96 S.Ct. at p. 3049.)

It is this balancing of policies which has led the Supreme Court to require standing for challenging police misconduct (see Stone, supra, 428 U.S. at p. 488, 96 S.Ct. at pp. 3049-3050), to allow the use of excluded evidence for impeachment of the defendant (United States v. Havens (1980) 446 U.S. 620, 627-628, 100 S.Ct. 1912, 1916-1917, 64 L.Ed.2d 559;  Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503), to refuse to apply the exclusionary rule to good-faith reliance on statutes and warrants (Illinois v. Krull (1987) 480 U.S. 340, 349-350, 107 S.Ct. 1160, 1166-1167, 94 L.Ed.2d 364;  Leon, supra, 468 U.S. at p. 913, 104 S.Ct. at pp. 3414-3415), to refuse to extend the exclusionary rule to grand jury (United States v. Calandra (1974) 414 U.S. 338, 351-352, 94 S.Ct. 613, 621-622, 38 L.Ed.2d 561) or federal civil proceedings (United States v. Janis (1976) 428 U.S. 433, 454, 96 S.Ct. 3021, 3032, 49 L.Ed.2d 1046), and to foreclose the relitigation of exclusionary-rule issues in habeas proceedings (Stone, supra, 428 U.S. at p. 494-495, 96 S.Ct. at pp. 3052-3053).   On the other hand, the court refused to allow the impeachment of defense witnesses by the prosecution with illegally obtained evidence.  (James, supra, 493 U.S. at p. 320, 110 S.Ct. at pp. 655-656.)   It concluded that, unlike subjecting a defendant's own testimony to impeachment, the truth-seeking function would not be enhanced beyond the present motivation of other witnesses to avoid prosecution for perjury, nor can a defendant control the testimony of other witnesses.  (Id. at pp. 313-314, 110 S.Ct. at pp. 652-653.)   Moreover, it would greatly eviscerate the deterrent effect by significantly increasing the possibility that illegally obtained evidence will be admitted, since “[d]efense witnesses easily outnumber testifying defendants․”  (Id. at p. 318, 110 S.Ct. at p. 655.)

What renders all these cases largely inapposite, however, is the presence in the case before us of a significantly different factor.   It is the codefendants who wish to introduce the evidence in their own behalf.   The right of a criminal defendant to present a defense is a fundamental element of due process.  (People v. Schroeder (1991) 227 Cal.App.3d 784, 787, 278 Cal.Rptr. 237.)   The judicially declared remedy of one defendant must fall before the fundamental constitutional right of another.   Even if the exclusionary rule nonetheless applied, the addition of this violation of a codefendant's due process rights, when combined with the social costs normally attendant on the exclusionary rule, creates a burden which cannot possibly be outweighed by the additional marginal deterrent effect of applying the exclusionary rule in this context.

Invoking section 1538.5 adds nothing to defendant Massey's argument.   In the first place, the statute prohibits the introduction of suppressed evidence “against the movant in any trial or other hearing․”  (Id., subd. (d) [emphasis supplied].)   The codefendant introduced the evidence in his own behalf;  he did not introduce it against defendant Massey.   Moreover, the only effect of the statute is to implement “such Fourth Amendment rights of an accused as he may have” (People v. Newell (1979) 93 Cal.App.3d 29, 36, 155 Cal.Rptr. 430), and must be construed in light of the state constitutional provision mandating the admission of all relevant evidence (People v. Moore (1988) 201 Cal.App.3d 877, 885, 247 Cal.Rptr. 353;  Cal. Const., art.   I, § 28(d)).   Thus, there is no greater protection for defendant Massey from the statute than that provided by the exclusionary rule itself.

We therefore reject defendant Massey's claim of error.   The trial court was correct in allowing her codefendants the opportunity to use the note.



Defendant Perry's second restitution fine (pursuant to section 1202.45) is hereby stricken.   The judgments are otherwise affirmed.   The superior court shall prepare an amended abstract of judgment and forward it to the Department of Corrections.


2.   The jury deadlocked on the guilt of the two other codefendants for the lesser offense of simple possession.   On the motion of the prosecutor, the trial court dismissed the case as to them.

3.   The note was to “Andrecka” from “Larry.”  (Although frequently misspelled in the record and by appellate counsel, the defendant herself spells her given name this way.)   It stated, “I got 20 for forty from Beckie.   But would you please do 40 which will make 60 and I [will] bring you 120 in the morning.   I'm on vacation so I don't have to work.   I promise I'll be here no later than 11:15 am after I go to the bank.”   On the back of the note was the reply, “give her 40[.]  I'll be there in a minute,” which defendant Massey admitted at the suppression hearing was her handwriting.

FOOTNOTE.   See footnote 1, ante.

DAVIS, Associate Justice.

SIMS, Acting P.J., and SCOTLAND, J., concur.

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