PEOPLE v. MILLER (1981)

Defendant appeals (Pen.Code, s 1538.5, subd. (m)) from a judgment of conviction entered after he pled guilty to six counts of burglary, in violation of Penal Code section 459 (all of which were found to be in the second degree), two counts of possession of a firearm by an ex-convict, in violation of Penal Code section 12021, and one count each of receiving stolen property and possession of a sawed-off shotgun, in violation of Penal Code sections 496 and 12020, subdivision (a), respectively. Asserting the invalidity of a search warrant pursuant to which a number of stolen items were recovered which formed the basis for some, but not all, of the charges against him, defendant contends that his conviction must be reversed in its entirety. The People concede that the affidavit in support of the search warrant was inadequate and the warrant therefore invalid, but insist that the judgment should be affirmed as to the offenses which are not supported by evidence discovered in the illegal search, claiming that, as to those offenses to which defendant pled guilty, the error in failing to suppress the evidence is harmless. We agree with defendant, however, that, even as to such “unrelated” offenses, the harm of the court's failure to suppress cannot be assessed, because defendant, for strategic reasons, may have declined to assert viable defenses to some or all of them in return for the dismissal of the others. Since we cannot pronounce the conceded error harmless, we reverse the judgment, but, since the bulk of the evidence supporting the reinstated charges is admissible, we direct the trial court to give defendant an opportunity to reenter his guilty pleas if he wishes.

FACTS

At about 1:30 in the morning of December 21, 1979, Officer Peter Winston of the Stockton Police Department observed a car proceeding slowly on a street in a residential neighborhood, steering in and out of the gutter around parked cars, and he began to follow it. The vehicle turned right onto a dark street. As it turned the corner, he saw its headlights go out and saw it come to a stop about 50 yards farther on. He pulled up behind the car and shone his spotlight on it. At that, the car executed a U-turn. As it passed the police car, Officer Winston ordered the driver to pull over to the curb. Instead, the driver sped up, but stopped when the police car also executed a quick U-turn and activated its siren.

The driver of the car was defendant's brother-in-law, Jonathan Sorling, and defendant was the sole passenger. After a consensual search of the car disclosed a loaded .22 calibre pistol, both were taken into custody. During the course of an interview at the police station, Sorling stated that he had seen defendant with a sawed-off shotgun. Two police officers then accompanied him to the address at which he said he had observed this, where they spoke with occupant Louie Coultres, who told them that he had recently sublet a washroom attached to his apartment to defendant. One of the officers thereupon prepared an affidavit relating what Sorling and Coultres had told him, but which failed to disclose the circumstances under which Sorling's information was gained. A search warrant was obtained and a search of the washroom conducted, which turned up, in addition to the sawed-off shotgun, a sawed-off rifle and other items reported stolen in recent burglaries.

On January 25, 1980, defendant (who had evidently been released from custody after his arrest on December 21, 1979) was recognized by a police officer as he was driving slowly through a residential area in the early morning. The officer knew that a warrant had been issued for defendant's arrest, so he signaled him to stop. Instead, defendant increased his speed and the officer gave chase. Several other patrol cars soon joined the chase and defendant was finally captured when his car spun out of control and went into a ditch. He had a loaded .22 calibre revolver on his person, and a consensual search of his automobile disclosed a sawed-off shotgun, a hypodermic syringe and a small packet of white powder that was later determined to be methamphetamine.

Defendant was charged in the information with 11 burglaries in all. Six of them (counts 1, 2, 3, 5, 7, and 8) were based on evidence discovered in the search of the washroom. All but one of these (count 7) were dismissed pursuant to defendant's plea bargain. In addition, he was charged with violation of Penal Code section 12020, subdivision (a), (possession of a dangerous weapon) and 12021 (ex-felon in possession of a firearm) in connection with the sawed-off shotgun and rifle found there (counts 12, 13, 15, and 16). These counts were also dismissed. Finally, misdemeanor drug and reckless driving charges connected with defendant's arrest on January 25, 1980 (counts 20-22), all unrelated to the evidence found in the illegal search, were also dismissed pursuant to the plea bargain. Defendant pled guilty to the six remaining burglary counts (counts 4, 6, 7, 9, 10, and 11) three of which related to burglaries committed after the search of the washroom on December 21, 1979 (counts 9, 10 and 11), and only one of which (count 7) was based on evidence discovered therein. In addition, defendant pled guilty to charges relating to weapons found in his possession on the occasions of both his arrests (counts 14, 17, 18, and 19).

DISCUSSION

The People concede that the trial court erred in upholding the search warrant for defendant's rented washroom. Since Sorling was not a “citizen-informant,” as the trial court properly determined, his reliability had to be established either by a showing that he had given authorities reliable information in the past or by the existence of corroborative evidence of criminal activity ; Coultres' “corroboration” of Sorling's story, which consisted of no more than information that defendant rented the washroom from him, showed no such illegality. (See People v. Smith (1976) 17 Cal.3d 845, 132 Cal.Rptr. 397, 553 P.2d 557; People v. Scoma (1969) 71 Cal.2d 332, 336-340, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Schmidt (1980) 102 Cal.App.3d 172, 178-180, 162 Cal.Rptr. 171.) The People contend that the error was harmless, however, as to those offenses to which defendant pled guilty which were “unrelated” to the evidence discovered in the illegal search,¹ relying upon People v. Punchard (1980) 103 Cal.App.3d 995, 163 Cal.Rptr. 366. We cannot agree.

In Punchard, Division 5 of the Second District Court of Appeal sought to set limits on the scope of a per se reversal rule enunciated by the Supreme Court in People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, and elaborated upon in People v. Rios (1976) 16 Cal.3d 351, 128 Cal.Rptr. 5, 546 P.2d 293, for cases where an erroneous failure to suppress illegally obtained evidence was followed by a guilty plea, in recognition of the difficulty of assessing prejudice on the record of such cases.

The Punchard court distinguished Hill and Rios on the ground that in those cases “the product of the illegal search was part and parcel of the crime charged and to which defendant entered his plea through the bargaining process,”² whereas in the case before it the charges involving items discovered in the illegal search had been dismissed pursuant to the plea bargain. (People v. Punchard, supra, 103 Cal.App.3d at p. 999, 163 Cal.Rptr. 366.)³ The court noted language in Hill observing that it appeared the evidence which should have been suppressed was not “ ‘... unconnected to the murder or ... irrelevant to the prosecution's case against defendants....’ ” (Id., at p. 998, 163 Cal.Rptr. 366.) Therefore, “(b)ecause of the complete severability of the count pled to from those which were contaminated,” the appellate court held that the harmless error rule should be applied and concluded that “defendant (had) pled guilty to a count to which there appear(ed) no conceivable defense and to which the error in failing to suppress had no connection and no effect.” (Fn. omitted.) (Id., at p. 999, 163 Cal.Rptr. 366.)

Although Punchard has so far found acceptance (though without discussion) in the reported decisions (People v. Nagdeman (1980) 110 Cal.App.3d 404, 412, 168 Cal.Rptr. 16; People v. Martinez (1981) 118 Cal.App.3d 624, 635-636), 173 Cal.Rptr. 554, the limits it sets on the per se rule of Hill and Rios seem to us inconsistent with their rationale in adopting it. The reasons for the rule were explicated in Hill :

“When, on an appeal from a judgment of conviction entered on a plea of guilty (s 1538.5, subd. (m)), an appellate court determines that the trial court erroneously refused to suppress some but not all evidence, the situation is altered, no matter how slightly, from that which existed prior to the plea of guilty. The harmless error concept as a basis for according relief in such a setting is clearly inappropriate. There simply is no intelligent means of assessing the impact of a particular erroneous refusal to suppress evidence. Unlike the ordinary post-trial appeal, there is nothing at all in the record to indicate what evidence or defenses the defendant is capable of producing on his own behalf. The strategic considerations which lead an accused to plead guilty pursuant to a plea bargain will frequently hinge not only on the quantum and quality of the prosecution's evidence, but also on the probable effectiveness of the defenses and evidence which the defendant has to counterbalance the incriminating evidence. After the exclusion of certain items of evidence, the prosecution's case may continue to appear invulnerable to an appellate court which necessarily can look only to the strength of competent evidence indicative of the accused's guilt. However, the defendant may have or believe he has means of impeaching, discrediting or casting doubt on such evidence, and the items excluded on appeal might be the very ones which posed the most difficult strategic problems for the defendant. Only the accused and his counsel are aware of what favorable evidence is available to them. We cannot, with any assurance, conclude that an appellate court, which does not have the benefit of that knowledge, can consistently arrive at an accurate assessment of whether the defendant would again plead guilty after knowledge that some but not all of the challenged evidence is to be suppressed. To the contrary, an unacceptable degree of appellate speculation would necessarily inject itself into the application of the harmless error concept in such a context.

“In view of the magnitude of the consequences of a guilty plea and the lack of an adequate basis upon which an appellate court can evaluate the impact of a trial court's error, we conclude that the doctrine of harmless error is inapplicable in the context of an appeal under section 1538.5, subdivision (m). The accused must be afforded an opportunity to personally elect whether, contrary to the trial court's ruling, the suppression of certain items of evidence would alter the situation in a sufficiently favorable manner so as to render a plea of not guilty strategically preferable.” (Fns. omitted.) (Emphasis added.) (People v. Hill, supra, 12 Cal.3d pp. 768-769, 117 Cal.Rptr. 393, 528 P.2d 1.)

Hill was subsequently reaffirmed in Rios : “When on such a record (where some evidence should have been suppressed, but there is also admissible evidence apparently sufficient to support the conviction) an accused withdraws a not guilty plea and enters a guilty plea pursuant to subdivision (m) of section 1538.5, thereby challenging the propriety of the trial court's ruling on appeal, the judgment must in all cases be reversed ....” (People v. Rios, supra, 16 Cal.3d at pp. 357-358, 128 Cal.Rptr. 5, 546 P.2d 293.)

Underlying the per se rule of Hill and Rios, then, is a basic recognition that where a court has erroneously refused to suppress illegally obtained evidence and the defendant has thereupon made a strategic decision to plead guilty to one or more offenses and thereby to forego asserting possible defenses of which he may be aware, “there is nothing at all in the record to indicate what evidence or defenses (he) is capable of producing on his own behalf” (People v. Hill, supra, 12 Cal.3d at p. 768, 117 Cal.Rptr. 393, 528 P.2d 1) and, hence, no adequate basis for determining that it is reasonably probable that, absent the error, he would have pled guilty anyway. It would seriously undermine this rationale, in addition to being utterly unrealistic, to assume that, where a defendant faces a number of charges, some supported by evidence which was obtained illegally and others unrelated thereto, an erroneous suppression ruling affects his strategic decision whether or not to plead guilty only as to the former, “contaminated” charges. The bargaining positions of the defendant and the People are in large part determined by “the quantum and quality of the prosecution's evidence” (Hill, at p. 768, 117 Cal.Rptr. 393, 528 P.2d 1); an erroneous denial of a motion to suppress evidence distorts the parties' perceptions of what evidence is available to the prosecution and thus affects the defendant's strategic decision as to whether to enter a negotiated plea. Pursuant to the plea bargain, the defendant may, as in the instant case, plead guilty to both contaminated and uncontaminated charges, and to say that his decision to plead guilty to the latter is any less “affected” by the erroneous suppression ruling than that to plead guilty to the former would be to deny the obvious.

What is central in Hill and Rios is the state of the record, rather the lack of a record, upon which an appellate court can determine the relationship of the related to the unrelated offenses in the defendant's decision to plead guilty. It is implied in the decisions that no burden is placed upon a defendant at the time of entry of the plea to establish, or even claim, that the denial of a suppression motion was a factor in his decision to plead guilty, even as to offenses wholly unrelated to the unlawfully seized evidence. Although the decision not to place some burden upon the defendant does not appear to us to be ordained by the language of Penal Code section 1538.5, subdivision (m), or the legislative intent behind it, the Supreme Court's reading of the statute's requirements is binding upon us.

To justify its restriction of the per se reversal rule to cases where “the product of the illegal search was part and parcel of the crime charged and to which defendant entered his plea (of guilty)” (People v. Punchard, 103 Cal.App.3d at p. 999, 163 Cal.Rptr. 366), the Punchard court pointed to a footnote in Hill which observed that the evidence appeared not to be “ ‘... unconnected to the murder (to which defendants pled guilty) or ... irrelevant to the prosecution's case against (them) ....” (Punchard, at p. 998, 163 Cal.Rptr. 366, quoting People v. Hill, supra, 12 Cal.3d at p. 767, fn. 36, 117 Cal.Rptr. 393, 528 P.2d 1.⁴ ) We think Punchard reads too much into this observation, since nothing in it suggests that the Supreme Court considered what should be done if the illegally obtained evidence was irrelevant to the murder charge but relevant to the dismissed burglary and marijuana charges against defendants (see Hill, at p. 768, 117 Cal.Rptr. 393, 528 P.2d 1). We read the footnote, more consistently with the opinion's exposition of its per se reversal rule, as standing for the unremarkable proposition that a court's refusal to suppress evidence which does not “incriminate” a defendant at all cannot possibly affect his strategic position in a plea bargain. (See People v. Mack (1977) 66 Cal.App.3d 839, 848-849, 135 Cal.Rptr. 283.)

Nor do we find persuasive the reasons put forward by the Punchard court for finding the error there harmless. The opinion's conclusory assertions that “there appear(ed) no conceivable defense” to the count to which the defendant pled guilty and that “the error in failing to suppress had no connection (to) and no effect” (fn. omitted; Punchard, at p. 999, 163 Cal.Rptr. 366) on his decision to plead guilty fly in the face of Hill ‘s recognition that a defendant's strategic decision whether or not to plead guilty is affected by the “quantum and quality of the prosecution's (available) evidence,” and that, where he does decide to plead guilty, and thus foregoes his opportunity to produce evidence and assert possible defenses, “(o)nly (he) and his counsel are aware of what favorable evidence is available to them.” (Hill, supra, 12 Cal.3d at p. 768, 117 Cal.Rptr. 393, 528 P.2d 1.) As a matter of “pure gamesmanship,” moreover, the Punchard opinion suggests that the erroneous suppression ruling was harmless because the defendant there was presumably aware of his potential claim of error when he “bargain(ed) away his right to contest” the unrelated charge in return for the “certain dismissal” of the two tainted charges. We are not convinced, though, that the People have a legitimate interest in holding a defendant to a bargain made in a context distorted by an erroneous suppression ruling which overstates the amount of evidence properly available to the prosecution. In Rios, the Supreme Court determined that a defendant “is entitled to be restored to the position he would have enjoyed had the court properly ruled on the motion in the first instance.” (People v. Rios, supra, 16 Cal.3d at p. 359, 128 Cal.Rptr. 5, 546 P.2d 293.) Finally, Punchard states that after pleading guilty and thus “unequivocably (sic) admitting that he did in fact commit the crime charged,” a defendant may not “reasonably challenge the validity of his bargain and his plea by pointing to the possible defenses he might have asserted as to the dismissed counts.” (103 Cal.App.3d at pp. 999-1000, 163 Cal.Rptr. 366.) The point of Hill, though, is that a defendant may challenge the validity of his guilty plea (despite the fact that it amounts to an unequivocal admission that he committed the crime charged) entered after an erroneous suppression ruling because of the possible defenses he might have asserted as to the count to which he pled guilty.⁵ (Hill, 12 Cal.3d at p. 768, 117 Cal.Rptr. 393, 528 P.2d 1.)

In sum, we find Punchard unpersuasive and decline to follow it; instead, under the compulsion of Hill and Rios, we refuse to apply the harmless error rule to the concededly erroneous denial of defendant's suppression motion in the instant case. Accordingly, the judgment must be reversed in its entirety. Since only one of the charges (count 7) appears to be based on evidence found in the illegal search, however, and the other counts appear to be supported by admissible evidence, we conclude that, as in Hill, defendant should “not be foreclosed from an election to be bound by the judgment( ) and thus not subject (himself) to trial on the original charges.” (Hill, 12 Cal.3d at p. 769, 117 Cal.Rptr. 393, 528 P.2d 1.)

DISPOSITION

The judgment is reversed, and the trial court is directed that upon an appropriate motion filed by defendant within 30 days after this decision becomes final, it should vacate the guilty pleas entered by defendant and reinstate those charges requested by the prosecutor. If no such motion is filed by defendant, the trial court is directed to reinstate the original judgment.

I concur in the judgment. I write separately because I regard the majority's criticism and disapproval of People v. Punchard (1980) 103 Cal.App.3d 995, 163 Cal.Rptr. 366, as unnecessary to the determination of this appeal.

The evidence which should have been suppressed is probative of perhaps three and probably only one of the ten charges to which defendant plead guilty (see fn. 1, p. 6, maj. opn.). Because most of the admitted charges are unaffected by the tainted evidence, the negotiated plea bears a superficial resemblance to that in Punchard where the charge to which defendant plead guilty similarly was unaffected by the illegal evidence. However, the defendant's admission of multiple charges, not all of which are affected by the erroneously unsuppressed evidence, creates a hybrid situation with elements of similarity not only to Punchard but also to People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, and People v. Rios (1976) 16 Cal.3d 351, 128 Cal.Rptr. 5, 546 P.2d 293. In both of the latter two cases, the illegally obtained evidence was relevant to all the charges to which guilty pleas were entered.

The present case more closely resembles Hill and Rios than Punchard because of the unitary nature of a negotiated disposition. Defendant plead guilty to ten counts but he entered into only one agreement with the prosecutor. Even though less than all of the charges admitted in a negotiated disposition are later determined to rely on tainted evidence, that fact may materially alter the considerations that motivated defendant to enter into the agreement. An appellate court cannot speculate as to what alternate resolution of the case would be acceptable to defendant once it is established that his admission of guilt includes even a single charge of questionable viability. Even if we possessed prescience of that kind, we are incompetent to reformulate the plea bargain by setting aside the tainted convictions and leaving the remainder intact. As with any voluntary agreement, any such material alteration would require mutual assent of the parties.

Because the tainted evidence is involved in the negotiated disposition, as in Hill and Rios, defendant is entitled to the opportunity to withdraw his guilty pleas and the restoration of the status quo ante. Because the tainted evidence affects part though not all of an integrated negotiated disposition, the principle announced in People v. Punchard is not applicable to this appeal.

FOOTNOTES

1.  The People single out the three burglary counts which occurred after the search (counts 9, 10 and 11), as well as the charges relating to weapons found in defendant's possession when he was arrested on December 21, 1979 (count 14, violation of Pen.Code, s 12021), and on January 25, 1980 (count 17, violation of Pen.Code, s 12021; count 18, receiving stolen property (revolver) in violation of Pen.Code, s 496; count 19, violation of Pen.Code, s 12020, subd. (a) (sawed-off shotgun)). Two of the three remaining burglary charges (counts 4 and 6) also appear to be “unrelated” to the evidence found in the washroom, though the People have not so contended, since the victims did not identify any of the items as theirs and the evidence against defendant at the preliminary hearing consisted of fingerprints left at the scene of the burglaries. So far as we can determine from the record, only one undismissed burglary charge (count 7) was supported by evidence discovered in the course of, or as a result of, the illegal search.

2.  In Hill, the defendants pled guilty to murder after the trial court denied their motions to suppress evidence under Penal Code section 1538.5. The Supreme Court upheld the court's rulings in the main, but concluded that police officers exceeded the permissible scope of the search of a residence in seizing some tape recordings, two paper bags and a motel receipt as to which a sufficient “nexus” to criminal activity was not established. (People v. Hill (1974) 12 Cal.3d 731, 763-764, 117 Cal.Rptr. 393, 528 P.2d 1.) Although “the bulk of the evidence which defendants sought to suppress” was properly admissible, defendants' convictions were reversed since their guilty pleas made it impossible to assess the impact of the error as to the remainder. (Id., at pp. 767-769, 117 Cal.Rptr. 393, 528 P.2d 1.)In Rios, 5,000 amphetamine sulfate tablets observed by an officer in plain view after defendant invited him into his psychedelic paraphernalia shop to investigate a burglary were held to be properly admissible, but a subsequent warrantless search which disclosed 13,500 more was illegal and the tablets found thereby should have been suppressed. The court accordingly reversed his conviction, based on a guilty plea, of unlawful possession of amphetamines for sale, observing: “The evil of an attempt to measure the prejudice which an accused may suffer in the posture of this case derives from the speculation in which the appellate court is compelled to engage in an effort to determine prejudice. In the circumstances here, for instance, had the motion been properly treated, defendant would have been confronted with a charge that he possessed amphetamines grounded on a single seizure of 5,000 pills, rather than on multiple seizures totaling 18,500 pills. Although the evidence now before us supports a conviction of possession of the 5,000 pills for sale, we cannot assess the possibilities of defendant's defenses to that single alleged unlawful possession. The suppression hearing afforded an opportunity to challenge only the propriety of the seizure; defendant has had no opportunity to present unrelated evidence, such as that he lacked knowledge or dominion and control of the 5,000 pills, if there are facts which support such a defense.” (Fn. omitted.) (People v. Rios (1976) 16 Cal.3d 351, 358-359, 128 Cal.Rptr. 5, 546 P.2d 293.)

3.  In Punchard, the defendant pled guilty to one count of receiving a stolen mink bedspread in return for the dismissal of two other identical charges relating to items discovered pursuant to a search warrant whose validity had been erroneously upheld by the trial court. The bedspread had been recovered by police before the illegal search took place.

4.  The footnote reads in its entirety: “There is no basis whatsoever for concluding that the items which we hold to be inadmissible are in fact unconnected to the murder or would be irrelevant to the prosecution's case against defendants. Indeed, the opposite conclusion seems unavoidable. In his opening remarks at the suppression hearing, the deputy district attorney stated that at defendants' trial he intended to introduce the physical evidence that was obtained at the H Street residence. This includes, inter alia, the tape recordings, the drugstore receipt and the motel receipt. The district attorney even stated that he intended to call a witness from the drugstore that the police were led to by the drugstore receipt. Furthermore, both at the suppression hearing and on appeal the People have vigorously maintained that the seizure of all items at the H Street residence was lawful. In light of the announced intention to offer these items into evidence at defendants' trial and the People's firm position that they were legally seized, the inference seems inescapable that such items, including those we hold to be inadmissible, tend to incriminate defendants and therefore are ‘connected’ to the murder. To conclude otherwise is to engage in unfounded speculation at the expense of defendants.”

5.  In the instant case, defendant may have foregone a possible defense of duress, for example, to the burglary charges to which he pled guilty. (See Pen.Code, s 26, subd. Seven.)

BLEASE, Associate Justice.

REYNOSO, J., concurs.