Barajas v. Appellate Div. of the Superior Court

40 Cal.App.5th 944

253 Cal.Rptr.3d 641

Eliseo BARAJAS, Petitioner,

v.APPELLATE DIVISION OF the SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The People, Real Party in Interest.

B295310

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

Filed October 4, 2019

Ricardo D. Garcia, Public Defender, Albert J. Menaster, Aubrey Cunningham and Nick Stewart-Oaten, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Jackie Lacey, District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, for Real Party in Interest.

CHANEY, J.

At his arraignment for a misdemeanor charge of carrying a dirk or dagger, Eliseo Barajas moved to dismiss the case for lack of probable cause pursuant to Penal Code section 991.¹ Barajas argued that because the circumstances surrounding his initial detention could not give rise to a reasonable suspicion that criminal conduct had occurred and because his contact with the arresting officer was not consensual, the evidence establishing probable cause was illegally obtained and should be excluded from the probable cause determination and the misdemeanor complaint dismissed. The trial court continued the hearing to allow the People to oppose Barajas’s motion to dismiss. (See § 991, subd. (b).) Based on the complaint and evidence filed in support of the People’s opposition to the section 991 motion, the trial court determined that Barajas was unlawfully detained and excluded all evidence obtained after the detention. The trial court granted Barajas’s motion to dismiss.

In a published opinion reversing the trial court’s order and overruling People v. Ward (1986) 188 Cal.App.3d Supp. 11, 235 Cal.Rptr. 287 ( Ward ), the Superior Court Appellate Division held that suppression of illegally obtained evidence cannot be litigated on a motion to dismiss under section 991. ( People v. Barajas (2018) 30 Cal.App.5th Supp. 1, 241 Cal.Rptr.3d 497.)

Barajas contends here that the Fourth Amendment demands a mechanical application of the exclusionary rule at a probable cause hearing under section 991 in the event the magistrate determines evidence was obtained via an unlawful detention. As we explain, this argument conflates several unrelated principles, and in doing so blurs the lines between various objectives trial courts must discharge as well as the procedures trial courts are required to use to achieve those objectives. As we explain, a Fourth Amendment violation may lead to an exclusionary rule analysis, but there is no guarantee evidence will be excluded. More fundamentally, those principles are wholly unrelated to section 991, the evidence a trial court may (and must) consider at a section 991 hearing, and the finding a trial court must make on a section 991 determination.

We agree with the Appellate Division that suppression of illegally obtained evidence cannot be litigated on a motion to dismiss under section 991. Accordingly, we deny Barajas’s writ petition.

BACKGROUND

A. Factual Background

At around 2:25 a.m. on September 20, 2017, Downey Police Officer Honrath saw Barajas standing near a closed business. Honrath stopped his car about 15 to 20 feet away from Barajas, shined a spotlight on Barajas, and asked him "something along the lines of, ‘where are you from’?" Honrath began "slowly and casually" approaching Barajas, and walked to a point 6 to 8 feet away from him.

Honrath asked Barajas if he was on parole or probation; Barajas responded that he was on probation. As Barajas answered, he put his hand in his sweatshirt pocket. Honrath instructed Barajas to keep his hands out of his pocket. Barajas volunteered that he "ha[d] his blade open," and Honrath instructed Barajas to "have a seat" and keep his hands where Honrath could see them.

Honrath instructed Barajas to remove the knife from his sweatshirt and set it away from himself. Shortly thereafter, Honrath arrested Barajas.

At no point during the contact did Barajas turn away, walk away, or refuse to speak to Honrath.

B. Procedural Background

1. Trial Court Proceedings

On September 22, 2017, the district attorney filed a misdemeanor complaint charging Barajas with carrying a concealed dirk or dagger in violation of section 21310. Barajas was arraigned the same day.

At his arraignment, Barajas moved to dismiss the complaint for lack of probable cause under section 991. Barajas argued that his contact with Honrath was a detention and was not consensual. He contended the circumstances under which the contact was made were not sufficient to give Honrath a reasonable suspicion that a crime had been committed and that any evidence of a crime, therefore, was illegally obtained. Absent the illegally obtained evidence, Barajas argued that there was no "probable cause to believe that a public offense ha[d] been committed and that [Barajas was] guilty thereof." ( § 991, subd. (a).)

The district attorney’s office responded that section 991 requires only that the trial court find that there is probable cause that the offense was committed, and does not "capture probable cause as to the detention or as to the arrest itself." The People also argued that Barajas’s motion was a section 1538.5 motion "disguised as a 991 motion."

The trial court disagreed with the district attorney’s argument, but found good cause to continue the hearing to September 26, 2017 to allow the district attorney to supplement the record upon which the trial court would decide the section 991 motion.² The People filed a written opposition to the section 991 motion and attached as exhibits the police report detailing the arrest, a supplemental report from Honrath detailing and contextualizing his contact with Barajas, and a transcript of the audio recording of the contact from Honrath’s body camera.

On September 26, the trial court heard argument regarding the detention and arrest leading to Barajas’s misdemeanor complaint. Upon the conclusion of the argument, the trial court found that there was a detention and that it was nonconsensual. On that basis, the trial court granted Barajas’s section 991 motion and dismissed the misdemeanor complaint.

2. Appellate Division Proceedings

The People filed a timely notice of appeal to the Appellate Division of the Los Angeles Superior Court pursuant to California Rules of Court, rule 8.852. The Appellate Division’s July 30, 2018 opinion reversed the trial court’s order dismissing Barajas’s misdemeanor complaint. In its opinion, which it certified for publication, the Appellate Division expressly overruled Ward , which held that the trial court was "allowed ... to determine the lawfulness of the custodial detention of a misdemeanant based upon the reading and consideration of an arrest report attached to the complaint ...." ( Ward, supra , 188 Cal.App.3d Supp. at p. 16, 235 Cal.Rptr. 287.) In overruling Ward , the Appellate Division determined that the trial court may not determine Fourth Amendment exclusionary rule questions in the context of a section 991 motion.

3. Subsequent Procedural Background

On our own motion, we ordered jurisdiction of the matter transferred to this court. ( Cal. Rules of Court, rule 8.1002(3).) We heard argument in the matter (No. B291635) on November 13, 2018. We issued an order on December 11, 2018 vacating our transfer order and returning the matter to the Appellate Division. On December 20, Barajas petitioned the Supreme Court for review of our order vacating transfer. The Supreme Court returned the petition for review unfiled.

On January 10, 2019, Barajas filed this petition for writ of mandate in the Supreme Court (No. S253470). By order of January 30, 2019, the Supreme Court transferred the matter to us. We summarily denied the petition on February 14, 2019.

Barajas petitioned the Supreme Court to review our order denying his writ petition on February 25, 2019 (No. S254238). On May 15, 2019, the Supreme Court granted review and transferred the matter to us "with directions to vacate [our] order denying mandate and to issue an order directing the respondent superior court’s appellate division to show cause why the relief sought in the petition should not be granted." We complied on May 23, 2019.

DISCUSSION

A. Jurisdiction

The People contend that Barajas’s petition for writ of mandate is an inappropriate procedural vehicle by which to obtain review of the Appellate Division’s judgment. The People’s statement of the question is: "In what circumstances, and on what grounds, may a higher court review a decision of the Appellate Division of the Superior Court via petition for an extraordinary writ, particularly when the Court of Appeal has denied transfer?"

We did not deny transfer in this case. We transferred the case on our own motion, and later vacated that transfer. We then denied Barajas’s petition for writ of mandate on the same grounds. That is the order Barajas asked the Supreme Court to review. "The Supreme Court may order review ... [¶] ... [¶] [f]or the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order." ( Cal. Rules of Court, rule 8.500(b)(4).) The matter is properly before us on the Supreme Court’s order.

B. Section 991, the Fourth Amendment, and the Exclusionary Rule

Barajas contends that the Appellate Division erred when it concluded that at a hearing on a section 991 motion a misdemeanor defendant may not challenge evidence obtained in a search that violates the Fourth Amendment.³

1. Standard of Review

"[Q]uestions of law and statutory interpretation are reviewed de novo." ( People v. McGowan (2015) 242 Cal.App.4th 377, 380, 195 Cal.Rptr.3d 312.)

2. The Fourth Amendment and the Exclusionary Rule

"The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Amendment says nothing about suppressing evidence obtained in violation of this command. That rule—the exclusionary rule—is a ‘prudential’ doctrine, [citation], created by [the...