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Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Dion HAMMOND, Defendant and Appellant.


Decided: February 26, 1986

Brown, Baron, Madden & Gailen, and Scott Gailen, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Richard B. Cullather and Alison Braun, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from the judgment entered following a nonjury trial that resulted in his conviction for possessing phencyclidine (PCP) for purposes of sale.  (Health & Saf.Code, § 11378.5.)   He contends, in essence, that (1) the proofs of his guilt were illegally harvested, (2) his admission of guilt was obtained in violation of his constitutional rights and, (3) in any event, the evidence was insufficient to establish his guilt.

 While we fully agree with the trial court's determination that the police conduct leading to the discovery of the subject contraband was not to be condemned,1 we actually need not reach this issue.

Following the electorate's adoption of Proposition 8, now Article I, section 28, subdivision (d), of the California Constitution, no person may challenge the recovery of evidence on the basis of alleged violations of the Fourth Amendment to the United States Constitution without first establishing his “standing” so to do, and such standing is not created merely because a charged crime is based upon that person's asserted illegal possession of a particular item of evidence.  (United States v. Salvucci (1980) 448 U.S. 83, 91, 100 S.Ct. 2547, 2552–2553, 65 L.Ed.2d 619;  see In re Lance W. (1985) 37 Cal.3d 873, 881, 210 Cal.Rptr. 631, 694 P.2d 744.)

 Since this point was not pressed below, anticipatably, appellant urges that the “People waive[d] their right to assert lack of standing.”   Such an argument, of course, is necessarily founded upon the fallacious concept that our courts are but sporting arenas created and maintained at public expense, where attorneys may play out their battles of wits with no regard for the social considerations that justify the very existence of any legal system—the search for truth.2

 The establishment of “standing,” i.e., the demonstration of entitlement to urge a court to engage in that form of self-immolation mandated by the exclusionary rule, is not a “right” possessed by the People.   It is a condition-precedent imposed upon the party urging suppression.

“The proponent of a motion to suppress has the burden of establishing his own Fourth Amendment rights were violated by the challenged search and seizure.   [Citations.]”  (People v. Ooley (1985) 169 Cal.App.3d 197, 202, 215 Cal.Rptr. 112.)

 All courts are solemnly obligated to see that this burden is met before they close their eyes to truth.   Further, the court's duty in this respect is not dependent upon the skill, or lack thereof, of a particular representative of the People.  (See In re Reginald C. (1985) 171 Cal.App.3d 1072, 1078, 217 Cal.Rptr. 768.)

 Of course, as appellant correctly observes, due to Proposition 8 and our Supreme Court's decision in Lance W., supra, in order to show standing at this juncture he would be “required ․ to maintain contradictory positions with regard to his ownership interest in the house.”   He is mistaken, however, to the extent he implies that this, for him, unhappy fact is the “fault” of those holdings;  Penal Code section 1538.5 was never intended to serve as a written invitation to perjury.   He also errs when he suggests the People's position would be similarly inconsistent.   The prosecution has neither reason nor need to prove or disprove anything at a suppression motion until after the movant has first established his standing to proceed.

 This is not to say that where the determination of any legal issue rests upon facts undeveloped at the trial level, a remand for further hearing may not be appropriate.   In this instance, however, as in People v. Hamilton (1985) 168 Cal.App.3d 1058, 1063–1064, 214 Cal.Rptr. 596, though the issue was not explicitly litigated below, “because the undisputed factual record is adequate and not ‘virtually barren’ [citation], we find it possible to reach the legal conclusion of whether defendant had standing.   We need not remand the matter for hearing.  [Citation.]  ‘[T]he facts necessary to determine whether petitioner had an interest in connection with the searched premises that gave rise to “a reasonable expectation [on his part] of freedom from governmental intrusion” upon those premises' [citation] are in the record before us.”

In truth, appellant's own presentation below constituted an unqualified disclaimer of any expectation of privacy.   That is to say, appellant, appellant's mother and appellant's roommate each swore under oath that appellant neither lived in, nor had any interest in, his mother's home where the PCP was discovered.   They asserted he had completely removed himself and his possessions therefrom over two months prior to the incident that formed the basis for the present prosecution.

In fact at trial appellant expressly testified as follows:

“Q Now, I direct your attention to December 6th, 1983.  [¶] Had you been residing or living at that house at that time?   A  No.   Q  Were you living somewhere else?   A  Yes.   Q  Where were you living?   A  1636 East 46th.   Q  And who were you living there with, if anybody?   A  Nashon Abram.   Q  That's the young man who testified just before you?   A  Yes.   Q  Were you living there on a full time basis?   A  Yes.   Q  Slept there every night?   A  Yes.   Q  Had your personal belongings there?   A  Clothes.   Q  And other items?   A  Had all my clothes.   I had nothing else.   I didn't have anything else, really, over my mother's house.   Q  When did you move into Nashon's residence?   A  He was living there, but he had been living about four months and then I had moved in about two months after he did.   Q  So would it be fair to say you were living there about two months prior to the time of the arrest?   A  Yes.   Q  And were you aware of anybody else other than members of your immediate family staying at your house, your mother's house, at any time prior to your arrest and after you moved out?   A  Well, the only time I used to come over was to visit my mother, was at the time she was sick.   Used to go over and see how she was doing and leave.   That was it.   Q  Was there anybody else ever staying there that you knew of?   A  Well, I knew the dude that was staying there.   Q  Who?   A  I knew the guy that my brother had brought and was staying there.   Q  His friend, Anthony Hill?   A  Yes.   Q  Did you ever hear that name—did anybody ever tell you that's what his name was?   A  Yes.   Q  You met him?   A  Yes.   Q  Do you know which room he was staying in?   A  Supposedly in mine, yes.   Q  You didn't have any objection to that?   A  Uh-uh.   I wasn't staying there any more.   I didn't care.”

Though not particularly germane to the question of standing to assert an expectation of privacy in a given locale, appellant, of course, also swore he did not possess, and had no knowledge of, the PCP recovered from the room which, he asserted, Hill was then occupying in his mother's home.

 Appellant's challenge to the introduction of his incriminating admission is equally meritless.   The People's witnesses testified that when appellant arrived at his mother's residence he was advised that contraband had been discovered therein.   He immediately announced “that the shit wasn't his shit, that he was holding it for a friend.”   The decision in Miranda v. Arizona (1966) 384 U.S. 436, at pages 473, et seq., 86 S.Ct. 1602, at pages 1627, et seq., 16 L.Ed.2d 694, itself made clear the admissibility of such spontaneous declarations.

 Appellant's contention that the evidence was insufficient to sustain his conviction also fails.   Although he denied “legal” ownership, his admission that he was “holding [the PCP] for a friend,” was alone adequate to establish his guilt.   The Health and Safety Code's proscriptions against the possession of contraband are not concerned with the nuances of chattel title.

Lastly, the large quantity of contraband recovered had been divided into 15 separate containers.   Therefore, it was clear that whoever its titular owner might be, it was intended for sale and appellant, who at a minimum knowingly possessed it, has never urged to the contrary.

The judgment is affirmed.


1.   The trial court credited the experienced police narcotics officer who testified he had gone to the home of appellant's mother in response to a telephone call from an unidentified “concerned citizen” who had advised “there was PCP being dealt and stored at [that] location.”   The officer encountered appellant's mother outside the premises and explained his mission.   She granted her consent to search and “she stated that if there was any [PCP] in there, that she wanted it out of there.”   When the officer located the room from which the powerful odor of this contraband was emanating he found it secured by a small lock to which appellant's mother said she did not have a key.   He broke this lock in order to immediately ventilate the room since he personally had been present on five prior occasions where residences had been completely destroyed and gutted by fire as the result of a chemical explosion.Even prior to the elimination of our vicarious exclusionary rule, no person had a right to place illegal, to say nothing of potentially lethal, commodities into another's possession and then deny that party the right to consent to their recovery and removal.  (See People v. Pranke (1970) 12 Cal.App.3d 935, 942, 91 Cal.Rptr. 129.)

2.   “The search for truth is not served but hindered by the concealment of relevant and material evidence.   Although our system of administering criminal justice is adversary in nature, a trial is not a game.   Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal․”  (In re Ferguson (1971) 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234.)  “ ‘․ Our courts are not gambling halls but forums for the discovery of the truth.’ ”  (People v. Geiger (1984) 35 Cal.3d 510, 520, 199 Cal.Rptr. 45, 674 P.2d 1303.)

GATES, Associate Justice.

ROTH, P.J., and BEACH, J., concur.

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