PEOPLE v. BARBAROSA (1980)

Defendant appeals from a judgment following a negotiated plea of guilty to furnishing cocaine (Health & Saf. Code, § 11352).   He challenges the superior court's denial of his motions to dismiss (Pen. Code, § 995) and to suppress (Pen. Code, § 1538.5) as well as the court's failure to award 64 days credit for good time/work time.

 Since defendant pleaded guilty, he is foreclosed on appeal from attacking the denial of his motion to dismiss the information based upon a claimed showing of entrapment as a matter of law at the preliminary hearing.   Although the court executed a certificate of probable cause (Pen. Code, § 1237.5), that in itself does not expand the grounds upon which an appeal may be taken following a guilty plea;  rather, it simply establishes a procedure for screening out frivolous claims among the issues which have not been waived.  (People v. DeVaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872, People v. Kaanehe (1977) 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028.)  “Other than search and seizure issues which are specifically made reviewable by section 1538.5, subdivision (m), all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea.”   (Kaanehe, supra, at p. 9, 136 Cal.Rptr. 409, 559 P.2d 1028.)   Assertion that the preliminary hearing evidence establishes an affirmative defense is the obverse and therefore the equivalent of a claim of insufficient evidence to hold to answer, a collateral issue which does not go to jurisdiction or to legality of the proceedings resulting in the plea.  (People v. Warburton (1970) 7 Cal.App.3d 815, 821, 86 Cal.Rptr. 894, People v. Hayton (1979) 95 Cal.App.3d 413, 417, 156 Cal.Rptr. 426.)   Moreover, there is nothing in the record which suggests any representation to defendant that the issue would be preserved on appeal despite his guilty plea;  the plea bargain thus remains valid.  (See People v. Coleman (1977) 72 Cal.App.3d 287, 292, 139 Cal.Rptr. 908.)

In any event, we note that the evidence at the preliminary hearing, consisting in its entirety of the testimony of the police undercover operator, is totally irreconcilable with the theory of entrapment as a matter of law.

Gregory Pope served as a police undercover operator in a narcotics investigation involving defendant.   Before his activities commenced on behalf of law enforcement, Pope had become acquainted with defendant, had been to his home, and on one such occasion had used cocaine provided by defendant at defendant's invitation.   On September 22, October 6 and October 22, 1976, Pope purchased cocaine from defendant.   On each occasion approximately one gram was purchased for prices ranging from $100 to $175.

On October 27, Pope arranged with defendant to purchase from him an ounce of cocaine for $2,200.   Pope gave defendant $400 to obtain a sample of the cocaine for Pope's approval before the main transaction was consummated.   Defendant then set out presumably to obtain the cocaine.   His movements and those of some of his associates were monitored surreptitiously by police.   In the course of the surveillance, police observed defendant and some associates enter a residence at 5708–42d Street.   Shortly thereafter, the officers, acting without a warrant, entered the residence, arrested defendant and conducted a search of the premises.  “Contraband” was discovered in the garbage disposal in the kitchen.   The specific nature and amount of the “contraband” is not disclosed by the record.

Defendant was charged in four counts;  the first three charged selling, furnishing and giving away cocaine respectively on September 22nd (count I), October 6 (count II) and October 22 (count III).   Count IV charged an offer to sell, furnish and give away cocaine on October 27.

Following denial of his motions to dismiss and to suppress evidence, and pursuant to a plea bargain, defendant pleaded guilty to furnishing cocaine as charged in count I.   As part of the bargain, the remaining counts and two charged prior felony convictions were dismissed.

 Based on the three earlier cocaine sales and the offer to sell shortly preceding his arrest, the police had ample probable cause to arrest defendant.   However, there were no exigent circumstances justifying a warrantless arrest in a private dwelling.  (People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333.)   More importantly, there were no exigent circumstances sufficient to justify a warrantless, nonconsensual entry and search of the private dwelling where the “contraband” was seized.   Accordingly, the search of the residence at 5708–42d Street was unlawful and the motion to suppress the evidence seized therein should have been granted.

On the face of the record, the evidence unlawfully seized on October 27 has no apparent relationship to the consummated sale of cocaine occurring on September 22 to which offense defendant pleaded guilty.   Its relevance, if any, would appear to be in connection with the events forming the basis for count IV in which an offer to sell was charged.   Inasmuch as count IV was dismissed, the error of the court in denying the motion to suppress evidence supporting that count would appear to be harmless.  (People v. Punchard (1980) 103 Cal.App.3d 995, 998–999, 163 Cal.Rptr. 366.)  People v. Rios (1976) 16 Cal.3d 351, 128 Cal.Rptr. 5, 546 P.2d 293 and People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, do not change that appraisal.  “In each of these cases, the product of the illegal search was part and parcel of the crime charged and to which defendant entered his guilty plea through the bargaining process.”  (People v. Punchard, supra, 103 Cal.App.3d at p. 999, 163 Cal.Rptr. 366.)   By contrast the offense to which defendant pleaded guilty here is completely severable factually and legally from count IV.

Defendant urges, however, that entrapment is a viable defense to the three counts of sale, but its successful interposition as to any of those counts is seriously compromised by the prospect that the illegally seized evidence would be available to counter the defense.   If defendant is suggesting that a jury would likely look askance at an entrapment plea by one who has offered to sell $2,200 worth of cocaine, we think his concern is well taken.   However, the offer to sell $2,200 worth of cocaine, the actual transfer to defendant of $400 for that purpose, and certain of defendant's apparent efforts to obtain the cocaine all preceded and were thus untainted by the unlawful search and seizure.   This evidence presented a formidable obstacle to successful assertion of an entrapment defense irrespective of how the court ruled on the suppression motion.

 As to the “contraband” seized in the dwelling, we can only speculate what impact, if any, it might have had on an entrapment defense.   Although the surrounding circumstances would suggest to even the unsophisticated reader of this record that the matter recovered from the garbage disposal was more likely narcotics or narcotics paraphernalia than, for example, a stolen pocket calculator, the exact nature and thus the relevance of the item seized is left to sheer conjecture.   A reversal for erroneous failure to suppress an object which does not constitute relevant evidence is neither required nor warranted by the policies underlying the exclusionary rule (People v. Mack (1977) 66 Cal.App.3d 839, 849, 136 Cal.Rptr. 283.)

Even assuming the yield of the garbage disposal was cocaine, the record does not reveal the quantity.   The difficulty in establishing entrapment does indeed increase in direct proportion to the amount of the illicit drugs shown to be in the hands of the seller.   On the other hand, if only a gram, more or less, were retrieved from the garbage disposal, the effect of the evidence would only be harmlessly cumulative.   We shall not assume in derogation of the judgment that the quantity involved would have significance to an entrapment defense.

In the circumstances shown by this record, the error in denying the motion to suppress was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705).

The judgment is affirmed.¹

I concur.

I join in the opinion of the court and agree that on the record there is no apparent relationship between the evidence unlawfully seized and the offense to which defendant pled guilty and, accordingly, the error in denying his motion to suppress was harmless.

The defendant contends that there is a per se reversal standard applicable in cases in which a suppression motion, pursuant to Penal Code section 1538.5, is erroneously denied followed by a plea of guilty.   The defendant overstates the case.

As defendant points out, “[t]here are a wide variety of factors which may influence the entry of any particular plea,” but if the evidence sought to be suppressed has no apparent evidentiary relationship to the offense made the subject of a plea the court cannot assume that a factor not apparent on the face of the record affected the plea.   It is incumbent upon the defendant to establish on the record, either at the time of entry of plea or otherwise, that the denial of a suppression motion was a factor which influenced the entry of the plea.   No such showing has been made in this case.

FOOTNOTES

1.   If otherwise eligible, defendant's claim to entitlement to behavior credits attributable to his presentence time in local custody is valid.  (People v. Sage (1980) 26 Cal.3d 498, mod. 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 [as modified].) The computation of such conduct credits is, with respect to a defendant who has already been sentenced, an administrative function to be performed by the Department of Corrections. (People v. Sage, supra;  see also Cal. Dept. of Corrections, Admin. Bull. 80/11.)

PUGLIA, Presiding Justice.

PARAS, J., concurs.