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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Kenneth Wayne HAWKINS, Defendant and Appellant. IN RE: Kenneth Wayne HAWKINS, on Habeas Corpus.

Cr. 13236, Cr. 13697.

Decided: April 29, 1982

Quin Denvir, State Public Defender, and Paul Bell, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven V. Adler and Richard D. Hendlin, Deputy Attys. Gen., for plaintiff and respondent.

Kenneth Wayne Hawkins was charged with possession of cocaine for sale (Health & Saf. Code, § 11351) and sale of cocaine (Health and Saf. Code § 11352).   After arraignment, Hawkins moved to require the prosecution to locate an informant, to set aside the information under Penal Code 1 section 995 and to suppress evidence under section 1538.5.   The court granted the motion to disclose the informant's whereabouts and later dismissed the charge alleging a sale because law enforcement agencies failed to make reasonable efforts to maintain contact with the informant.   The court, however, denied the motion to dismiss the possession charge because the informant was not a material witness and the police had made reasonable efforts to locate that witness.   The court also denied the section 1538.5 motion.

Hawkins entered a guilty plea pursuant to a plea bargain and was sentenced to 90 days local custody and 5 years probation.   Hawkins then appealed.

Hawkins' motions under sections 995 and 1538.5 were submitted on the basis of the preliminary hearing transcript together with additional evidence received at the motion hearing.

In late December 1979, Paul Mentzel, a police informant, negotiated and arranged a cocaine transaction between Hawkins and undercover officer Berstler.   On the morning of December 31, 1979, Berstler searched Mentzel for drugs and money, found neither, and gave him $50 of government funds.2  Then Berstler and Mentzel drove to Hawkins' apartment on Altadena Street.

Mentzel went inside the apartment and returned with a bindle of cocaine which he said he bought from Hawkins.   Berstler field-tested the sample, found it contained cocaine, then sent Mentzel back into the apartment to negotiate a purchase of an additional two ounces of cocaine.   Mentzel returned and told Berstler the two ounces were available but Hawkins would have to go to his drug connection.

Hawkins drove to 3411 Euclid where he met codefendant Wright.   Berstler and Mentzel followed Hawkins there.   Hawkins then told them to follow him, and he and Wright drove to the 1400 block of Lincoln Avenue.

At this new location, Berstler told Wright and Hawkins he had the $5,000 to buy the two ounces.   Wright told Berstler he needed the money up front and his connection would not allow anyone else in the apartment on Lincoln Avenue.   Recognizing Berstler's reluctance to give him $5,000, Wright said Hawkins had fronted money for a purchase of one-eighth ounce of cocaine.

Berstler refused to front the $5,000 but through Mentzel he negotiated a purchase of one-half ounce of cocaine for $1,340 plus $40 more to Hawkins for the original sample.   Berstler gave Mentzel the $1,380, who gave it to Hawkins.   Hawkins then entered the apartment and returned with a baggie containing 13.8 grams net weight of cocaine saying, “See, man.   I told you it could be done.   We can get the other two ounces taken care of the same way.”   Then Berstler gave a prearranged arrest signal and Hawkins was arrested.   The government money which had been identified by serial numbers and provided for the earlier purchase was found in Hawkins' pocket.

Other officers simultaneously approached the apartment, knocked on the door, identified themselves and demanded entry.   After about 30 seconds, the officers heard noises inside the apartment and then broke open the door.   Codefendants Wright, Cook and Duron were arrested.   Additional drugs, scales and money (some of which was government funds identified by serial numbers) were seized.   Immediately after entry, an officer retrieved a bag of cocaine from a flushing toilet.

The officers entered the apartment without a warrant because they believed both contraband and money would be destroyed if they waited to obtain a warrant.3  Before the entry and arrest, surveillance officer Berglund saw codefendant Cook look out of two apartment windows which faced Berstler's vehicle.   Also, Berstler believed codefendant Duron was acting in a “counter-surveillance” capacity during the drug transaction.   Duron had been standing outside looking around and thought he recognized an undercover officer.   As a result, the recognized officer was removed to a different surveillance location.   Therefore, the officers knew the codefendants could have seen Hawkins' arrest.   Other than these facts and their experience in narcotics arrests, the officers had no specific information that anyone inside the apartment would destroy evidence or arm themselves.

 Hawkins first contends the section 1538.5 motion should have been granted because no true exigency existed to justify the officers' entry into the apartment without a warrant.

“[W]arrantless arrests within the home are per se unreasonable in the absence of exigent circumstances.  [Fn. omitted.]  [¶] ․  In this context, ‘exigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence․  [A]nd in each case the claim of an extraordinary situation must be measured by the facts known to the officers” (People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333).

When the officers entered the apartment, several facts known to them suggested an extraordinary situation existed.   First, Officer Berstler lawfully arrested Hawkins in view of the apartment.   Second, because of the counter-surveillance measures taken by the codefendants in the apartment, it was reasonable to believe destruction of contraband and marked money was imminent.   The codefendants in fact did try to destroy evidence by flushing cocaine down the toilet as soon as they became aware of the officers.   Third, shortly after the officers knocked on the apartment door, they heard noise inside.   This suggested to the officers destruction of evidence may have already begun.   Fourth, Berstler contemplated buying two ounces of cocaine which Hawkins said was available.   However, Berstler only bought one-half ounce because he felt uncomfortable fronting $5,000 to these suspects.   Thus, the officers could reasonably believe other drugs, at least the remaining one and one-half ounce, were still inside the apartment.

Based on these facts and the officers' experience, they entered the apartment.   The warrantless entry and arrest inside the apartment satisfies the standard set forth in People v. Ramey, supra, exigent circumstances did exist.

Although Hawkins did not raise this specific issue below, he now argues the exigency was created by the officers.   Therefore, he contends, it is not a true emergency within the contemplation of People v. Ramey, supra, but rather a “do it yourself” emergency.

 The rule of law is an officer may not circumvent the warrant requirement by creating an emergency (see Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 540–541, 106 Cal.Rptr. 452;  James v. Superior Court (1978) 87 Cal.App.3d 985, 991–993, 151 Cal.Rptr. 270).

 Examining the present facts, we find the exigency was not one created by the officers.   The time and place Berstler arrested Hawkins was proper police conduct;  he was not compelled to wait or arrest Hawkins at a location where codefendants could not view the police activity and risk the possibility of his escape.   Because codefendants could have observed Hawkins' arrest, it would have been unreasonable for the officers to delay their apartment entry and obtain a warrant.   Furthermore, defendants Hawkins and Wright told the officers to follow them to the Lincoln Avenue apartment to conclude the drug transaction.   As no officer could have foreseen this, it was impossible to obtain before hand a warrant to enter the apartment.   Probable cause did not exist until after Hawkins obtained the 13.8 grams of cocaine from the apartment and delivered it to Berstler.   Thus, we conclude the emergency was a true exigency and clearly distinguishable from the “do it yourself,” police created variety of Shuey, supra, and James, supra.   Therefore, we hold the court's denial of Hawkins' section 1538.5 motion to suppress was not erroneous and was supported by substantial evidence (People v. Hill (1974) 12 Cal.3d 731, 744, 117 Cal.Rptr. 393, 528 P.2d 1).

Hawkins next contends his guilty plea should be set aside because it was based on a mistake of law.   The mistake at issue is defense counsel's erroneous belief, ostensibly communicated to Hawkins, that a denial of a section 995 motion to dismiss because of the prosecution's failure to disclose the informant's whereabouts is subject to appellate review following a guilty plea.

In People v. Castro (1974) 42 Cal.App.3d 960, at page 963, 117 Cal.Rptr. 295, this court held “[a]n order denying a motion to disclose the identity of an informant is not subject to review on appeal after the defendant has entered a plea of guilty [citation] ․ because the purpose of the motion relates solely to the defendant's guilt or innocence, an issue which is removed by the guilty plea.”   This court also noted where a plea bargain purports to preserve a nonappealable issue, and the pretrial ruling is collateral to and not inconsistent with the guilty plea, the appellate court has jurisdiction (id. at pp. 963–964, 117 Cal.Rptr. 295).   However, the terms of the plea bargain must be determined when the bargain was made and not by defendant's subsequent declarations (id. at p. 965, 117 Cal.Rptr. 295).

In People v. DeVaughn (1977) 18 Cal.3d 889, at page 895, 135 Cal.Rptr. 786, 558 P.2d 872, the California Supreme Court stated:  “Issues cognizable on an appeal following a guilty plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings' resulting in the plea.  ( [Penal Code] § 1237.5)” (Emphasis added.)

In People v. Coleman (1977) 72 Cal.App.3d 287, at page 292, 139 Cal.Rptr. 908, the court held where “defendant's plea is ‘induced by misrepresentations of a fundamental nature’ ․, a judgment based upon the plea must be reversed.”   Because the trial court (and prosecution) in Coleman participated in inducing defendant's guilty plea based upon his reliance on a material mistake of law, the appellate court reviewed the issue, reversed the judgment, and remanded with directions to permit defendant to withdraw his plea (id. at p. 293, 139 Cal.Rptr. 908).

 Applying these rules to the present case, we conclude this court may not properly resolve this issue on appeal.   Excluding from consideration any procedural deficiencies stemming from Hawkins' failure to file a certificate of probable cause as required by section 1237.5, we find:  (1) an order denying Hawkins' motion to dismiss because of the prosecution's failure to disclose the whereabouts of the informant (Mentzel) is not ordinarily subject to review on appeal following a guilty plea because such motion pertains solely to Hawkins' guilt or innocence, an issue which is removed by his guilty plea (see People v. Castro, supra, 42 Cal.App.3d 960, 963, 117 Cal.Rptr. 295);  (2) no exception as discussed in Castro applies because the plea bargain did not purport to preserve a nonappealable issue nor is the pretrial ruling collateral to and not inconsistent with a guilty plea (see id. at pp. 963–964, 117 Cal.Rptr. 295);  (3) this issue is not constitutional, jurisdictional, or another ground going to the legality of the proceeding (see People v. DeVaughn, supra, 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872), but rather, relates to the factual defense of entrapment;  (4) finally, the court or prosecution had no role in inducing Hawkins to rely on a mistake of law and therefore plead guilty.   For these reasons, we hold Hawkins' contention is not reviewable on appeal.

This court, however, does have jurisdiction to decide Hawkins' issue on the merits because he has filed a petition for a writ of habeas corpus.   The evidence we have before us is the record on appeal and a declaration of Hawkins' trial counsel which states counsel advised Hawkins to enter a guilty plea under the belief the motion to dismiss could be reviewed on appeal.   While we would ordinarily require an evidentiary hearing to allow the People to cross-examine defense counsel, we feel such proceeding to be unnecessary.   We assume the facts in the declaration to be true.

The particular pretrial ruling at issue is the denial of Hawkins' section 995 motion to dismiss the possession for sale count.   The court reasoned the police efforts in attempting to locate informant Mentzel were reasonable and the informant was not a material witness.

 When an informant is a material witness on the issue of guilt, the People must disclose his identity (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 83 Cal.Rptr. 586, 464 P.2d 42).   Identity refers to the informant's name and all pertinent information to help the defense locate him (ibid.).   “Thus, although the prosecution need not produce the informer as a witness [fn. omitted], it cannot withhold information which might assist the defense's efforts to locate and produce him” (ibid.).   Rejecting the notion the People must produce the informant once defendant establishes he is a material witness on the issue of guilt, the court stated:  “Due process requires only that the police and the district attorney undertake reasonable efforts in good faith to locate the informer” (id. at p. 853, 83 Cal.Rptr. 586, 464 P.2d 42;  emphasis in original).

The California Supreme Court elaborated on Eleazer, supra, in People v. Goliday (1973) 8 Cal.3d 771, 106 Cal.Rptr. 113, 505 P.2d 537.   In Goliday, defendant was convicted of both a possession for sale and a sale charge.   Police relied on two informants in effectuating defendant's arrest.   Police deliberately avoided obtaining information on the informants, such as their last names, addresses, telephone numbers, etc., so they would not be called as witnesses.   The court stated:

“The police bear no duty to obtain information about a person who is not a material witness, who ‘simply points the finger of suspicion toward a person who has violated the law.   He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is charged.’  [Citation.]”  (Goliday, supra, at p. 782, 106 Cal.Rptr. 113, 505 P.2d 537.)

Employing this concept of “material witness,” the court reversed defendant's conviction for selling drugs.   However, the court affirmed the possession for sale conviction because the evidentiary record established the elements of this crime without reference to anything the informant might have witnessed (id. at p. 783, 106 Cal.Rptr. 113, 505 P.2d 537).   Thus, as to the possession count, the informant was not a material witness and the People had no duty to disclose his identity and location.

An expanded concept of “material witness” requires the defendant to demonstrate a reasonable possibility the informant could provide evidence on the issue of defendant's innocence (People v. Long (1974) 42 Cal.App.3d 751, 755, 117 Cal.Rptr. 200).   The court must only find there existed a reasonable possibility the informant's testimony might exonerate defendant (ibid.).

 Applying these rules, we hold substantial evidence supported the court's pretrial ruling Mentzel was not a material witness as to Hawkins' possession charge.   Sufficient evidence of Hawkins' guilt, irrespective of the informant's participation, supports the ruling.   After supplying Officer Berstler with a cocaine sample with the assistance of Mentzel, Hawkins told them two more ounces were available.   With Berstler and Mentzel following, Hawkins drove to his supplier (codefendant Wright) and then to the Lincoln Avenue apartment.   Once the half-ounce transaction was negotiated, in which Hawkins was to receive $40 more for the initial sample, Hawkins physically gave Berstler a baggie containing 13.8 grams of cocaine saying, “See, man.   I told you it could be done.   We can get the other two ounces taken care of the same way.”   Furthermore, Wright told Berstler that Hawkins had fronted money for a purchase of one-eighth ounce of cocaine.   The court's denial of Hawkins' motion to dismiss was proper.

Because we resolved all the issues on their merits and find none of the alleged errors have merit, we must hold Hawkins was not denied any substantial rights due to incompetence of trial counsel.

Petition for writ of habeas corpus is denied.   Judgment affirmed.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The police recorded the serial numbers of the currency.

3.   Berstler testified it required between one and four hours to obtain a telephonic warrant.

COLOGNE, Acting Presiding Judge.

WIENER and WORK, JJ., concur. Hearing denied;  BIRD, C. J., and MOSK, J., dissenting.

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