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Case Number: APP-01-005818
Filing Date: Mar-18-2002 11:25
Juke Box: 001 Image: 00387326
APPELLANT'S OPENING BRIEF FILED:(R/B DUE 4/08/02.)
PEOPLE OF THE STATE OF CALIFORNIA VS. ALDO GOMEZ
001A00387326
Instructions:
Please place this sheet on top of the document to be scanned.IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
APPELLATE DIVISION
PEOPLE OF THE STATE OF
CALIFORNIA, APPELLATE ACTION #CR 5818
Plaintiff/Respondent. LIMITED JURISDICTION No: 1947129
vs.
ALDO GOMEZ,
Defendant/Appellant.
~ Uepuiy Clerk”
APPELLANT’S OPENING BRIEF
On Appeal From the Order Denying
Defendant’s Motion to Suppress in the Municipal Court of the
State of California in and for the City and County of San Francisco
Honorable Patrick J. Mahoney, Presiding
KIMIKO BURTON
Public Defender
City and County of San Francisco
RANDALL P. MARTIN
Chief Attorney
ALISA J. KIM (SBN 146226)
Deputy Public Defender
555 Seventh Street
San Francisco, CA 94103
(415) 575-8822: (415) 553-1671
Attorneys for Defendant/Appellant
Appellant’s Opening Brief/Gomez, A./#CR 5818TABLE OF CONTENTS
TABLE OF AUTHORITIES .... 0.0... c ccc eect n nett eee il
MEMORANDUM OF POINTS AND AUTHORITIES ............0 0000s e cece eee eee 1
STATEMENT OF THE CASE ...... 0.0... c cece nec ee een ne eens 1
STATEMENT OF FACTS «2.0.06. ence ete eee ee 2
APPELLANT’S VERSION OF THE FACTS ..............000 00000 e eee 2
PROSECUTION’S VERSION OF THE FACTS ..........0. 00.000 e eee 3
ARGUMENT 1.0... 200. cnet erent enn e teen nes 3
Gomez was denied his right to an evidentiary hearing when he raised a contested
factual issue 0.0... ccc teen eens 3
A. Gomez met his burden of raising the issue by alleging the lack of a
warrant; the judge erred in requiring him to specify more facts to
obtain a hearing ...... 0... 3
B. The court erred in denying Gomez an evidentiary hearing on
whether he drove down a one-way street as it was a fact placed in
issue by the pleading ........ 00.0... c cece eee eee eee 8
Cc. The court was in violation of Williams when it made its decision
on the CHP report which was being challenged by the defense
eee eee e eee eee eens 12
CONCLUSION 2.00.6 ccc nner e eet ee ee beeen es 14
i Appellant’s Opening Brief/Gomez, A./#CR 5818TABLE OF AUTHORITIES
FEDERAL CASES
Wong Sun y. United States
(1973) 371 US. 471 oo eet tenet eens 11
STATE CASES
City of San Jose v. Superior Court
(1998) 67 Cal.App.4th 1135 00... 0.200 ccc cece eee e eee eee tee e eee eres 5-7
Estate of Fraysher
(1956) 47 C.2d 131 2 eet eee nee ene 12
Fewel v. Fewel
(1943) 23 Cal.2d 431 20... t erent eee ee 12
Lockridge v. Superior Court
(1970) 3 Cal.3d 166 2... ence cnet eee ences 11
Moon v. Moon
(1944) 62 Cal.App.2d 185 2.0.0.0 cence etn n ene ee 12
People v. Brown
(1998) 62 Cal. App.4th 493 00.0... cece ccc cece cece eeeeeeeveesveveereees 12
People v. Curley
(1970) 12 Cal. App. 3d 732 2.0... e ene ee 10
People v. Davis
(1989) 215 Cal. App.3d 1348 2.000 cece ccc e eee e cece cess ee ceeeeeneeee 9
People y. Dickinson
(1976) 59 Cal.App.3d 314 2.0.0.0 cece neces 12
People y. James
(1977) 19 Cal.3d 99 Loe cence eee ee 10
People v. Lawler
(1973) 9 Cal.3d 156 2... ect eee ene nent eee ee 9
People v. Leyba
(1981) 29 Cal.3d 591 0... cece e eens 9, 12
People v. Mooc
(2001) 26 Cal.4th 1216 2... cece net e nee e nen eee 11
People v. Smith
(2002) 95 Cal.App.4th 283 2... cece nnn eee e ee 3, 6, 13
ii Appellant’s Opening Brief/Gomez, A./#CR 5818People v. Superior Court (Gremminger)
(1997) 58 Cal. App.4th 397 2 o.oo eccecc cece seve eases
People v. Williams
(1999) 20 Cal.4th 119 oo. eee eee
Pitchess v. Superior Court
(1974) 11 Cal.3d 531 00.0... eee
LOCAL RULES
San Francisco Superior Court Local Rule 16.10 ............. 00000
CONSTITUTIONAL PROVISIONS
The Sixth Amendment to the United States Constitution ............
iii Appellant’s Opening Brief/Gomez, A./#CR 5818The issue on appeal before this court is:
Appellant Gomez was denied his right to an evidentiary hearing when he raised a contested issue
of fact:
A. In motions to suppress, the defense has the initial burden of raising the issue of an
unreasonable warrantless search or seizure. Here, Gomez asserted that there was no warrant
in his initial papers. The lack of a warrant was never controverted.
B. Gomez’s declaration of counsel asserted that there were “facts ... in dispute making a hearing
on this motion necessary and proper.” (Declaration [10/26/00] 13-14.) The prosecution claimed
he drove the wrong way down a one-way street. Gomez averred he did not.
Cc. The court erred when it decided the motion to suppress on the pleadings.
MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF THE CASE
Defendant/appellant ALDO GOMEZ was charged with two misdemeanor counts of driving
under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with a blood alcohol level
of .08% (Veh. Code, § 23152, subd. (b)); both counts alleged to have occurred on September 30,
2000.
Gomez filed a Motion To Suppress Evidence Pursuant to Penal Code Section 1538.5
claiming that his rights under the Fourth Amendment were violated by an illegal seizure, which was
unreasonable for lack ofa warrant and any reasonable suspicion that he was engaged in any criminal
activity. In her declaration, Deputy Public Defender Michele Forrar gave notice that facts were in
dispute “making a hearing on this motion necessary and proper.” (Declaration [10/26/00] 13-14.)
The prosecution countered in its Motion To Oppose Defendant’s Motion To Suppress Evidence that
Gomez had been driving the wrong way on a one-way street (Opposition 5:1-3) but gave no
justification for the warrantless search or seizure. In his Reply To People’s Opposition, Gomez
maintained that his detention was not supported by reasonable suspicion that he was involved in any
criminal activity and that the warrantless arrest was without probable cause for which the
prosecution failed to provide any justification. (Reply 1: 21-23; 2:2-3.) Appended to the Reply was
a supplementary Declaration of Counsel in which Gomez denied that he had been driving
northbound on a southbound street. (Declaration of Counsel [11/20/00] 12-13.)
At the November 21, 2000 hearing, the Honorable Judge Patrick Mahoney initially
1 Appellant’s Opening Brief/Gomez, A/#CR 5818challenged defense counsel Forrar on whether the reply had been timely filed. (RT 2:21-22.) This
devolved into a discussion specifically about People v. Williams (1999) 20 Cal.4th 119 and what
factual and legal bases a defendant must set forth in its motion and what necessitates the filing of
the reply brief.
Judge Mahoney denied the motion on three grounds: (1) the defense failed to meet its burden
of “pointing to specific facts that would warrant a hearing”; (2) the court could decide the motion
on the papers; and (3) the court believed there was probable cause to stop Gomez because he was
seen driving the wrong way on a one-way street. (RT 18:14-23.) Deputy Public Defender Forrar
stated for the record that Gomez was prepared to proceed with a hearing that day and that his
witnesses were present. (RT 19:1-4.) Judge Mahoney observed for the record that he was assuming
the prosecution was likewise ready to proceed, with which the assistant district attorney concurred.
(RT 19:5-8.)
STATEMENT OF FACTS
APPELLANT’S VERSION OF THE FACTS
“The pertinent facts for this first pleading are that the search and seizure was conducted
without a warrant and that the defendant had a reasonable expectation of privacy in the area searched
and the items seized. (See attached declaration of counsel in support of motion.)” (Motion 4:3-5.)
The Declaration stated that “there exist[ed] a valid factual basis for the statement of facts contained
in this motion and that some or all of those facts are contested or in dispute making a hearing on this
motion necessary and proper.” (Declaration [10/26/00] 12-14.) The supplementary Declaration of
Counsel appended to the Reply stated that “the justification for the officers initial stop of Mr.
Gomez, namely that he was driving northbound on a southbound street, is materially in dispute.”
(Declaration of Counsel [11/20/00] 9-13.)
Throughout the hearing on the suppression motion, Gomez indicated that he was prepared
to present evidence to dispute the facts relied upon by the prosecution in the California Highway
Patrol Report #00-1742. (RT 7:25-28; 8: 1-3; 13:12-15; 17:13-17; 19:1-4.)
2 Appellant’s Opening Brief/Gomez, A./HCR 5818PROSECUTION’S VERSION OF THE FACTS!
“On September 30, 2000, around 2:37 A.M., Officer C. Bowling was riding with his partner
Officer Zerilli in a marked CHP patrol car on southbound 8" street approaching a red signal light
at Bryant Street when they saw a car’s headlights coming toward them. The car was a gray Acura
traveling northbound at approximately 10 miles per hour on 8" Street, which is a one-way street at
that location. Officer Zerilli stopped the car at the Bryant Street stoplight and turned on the car’s
overhead lights. The Acura made a U-turn just south of Bryant Street. Officers Bowling and Zerilli
followed the Acura with overhead lights flashing, and stopped the Acura on Brannan Street.
“Officer Bowling approached the Acura on the passenger side and contacted the driver
through the right front window. He identified the driver as Aldo Gomez (the Defendant) through
his California Driver’s License. Officer Bowling asked Mr. Gomez whether he realized he was
driving the wrong way ona one way street. As Officer Bowling talked with Mr. Gomez, he noticed
that Mr. Gomez’s eyes were red and glassy and his speech was slow and slurred. He also smelled
the odor of alcohol coming from within the car. Officer Bowling asked Mr. Gomez if he had had
anything to drink and he replied that he had had four Coronas at the Glass Cat bar.”
(Opposition 2:26-28; 3:1-13.)
ARGUMENT
Gomez was denied his right to an evidentiary hearing when he raised a contested factual issue.
A. Gomez met his burden of raising the issue by alleging the lack of a warrant; the judge
erred in requiring him to specify more facts to obtain a hearing.
“A defendant meets the initial burden of raising the issue of an unreasonable warrantless
search or seizure by ‘simply assert[ing] the absence of'a warrant and mak[ing] a prima facie showing
to support that assertion.” (People v. Smith (2002) 95 Cal.App.4th 283, 296, quoting Williams,
supra, 20 Cal.4th at 130.) Under Penal Code section 1538.5, the defendant must address two
concepts — (1) assert not only that the search or seizure was without a warrant but (2) also explain
why it was unreasonable, that is to say, that it must not fall within any exception to the warrant
requirement. Appellant Gomez met the initial burden of producing evidence of his prima facie case
ofan illegal search or seizure. His Motion stated that the search and seizure were conducted without
benefit of a warrant and that he was detained without reasonable suspicion and arrested without
' The first two paragraphs of the Opposition’s Statement of Facts are presented
here. The prosecution, in its moving papers, referred to and appended the California Highway
Patrol Report #00-1742, which included not only the patrol officer’s narrative but also the results
of the Field Sobriety Tests administered, a copy of Aldo Gomez’s driver’s license, the California
Highway Patrol Intoxilyzer Model 5000 Checklist, and a standard Department of Motor Vehicles
form DS 367 stating the blood alcohol content test results.
3 Appellant’s Opening Brief/Gomez, A./#CR 5818probable cause. (Motion 2:25-26; 4:3-5.) In his Reply, Gomez repeated that there were no legal
grounds for his detention and pointed out that the prosecution in its Opposition had failed to justify
the warrantless search and seizure. (Reply 1:21-28; 2:1-3.)
At the suppression hearing, the court initially invoked Williams, supra, to query defense
counsel about the timeliness of her filing of the reply brief and whether or not in fact the defense
was legally obliged to file one in the first place.? Defense counsel explained Williams, supra, to
mean that the defendant has the burden of raising an issue, which requires the defendant to first
make out a prima facie case. Then, the burden shifts to the prosecution to justify the warrantless
search or seizure. “[O]nce the prosecution has offered a justification for a warrantless search or
seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.]
Otherwise, defendants would not meet their burden under section 1538.5 of specifying why the
search or seizure without a warrant was ‘unreasonable.’ This specificity requirement does not place
the burden of proof on defendants. [Citation.]” (Williams, supra, 20 Cal.4th at 130.) The Williams
court goes on to note the defendant’s burden of raising an issue as being distinct from the
prosecution’s burden of proof. “The prosecution retains the burden of proving that the warrantless
search or seizure was reasonable under the circumstances. [Citations.]” (Williams, supra, 20
Cal.4th at 130.) By negative implication, therefore, failure by the prosecution to set forth a
justification for the police’s conduct relieves the defense of having to reply.
There followed an extensive discussion about whether in fact the prosecution’s papers did
sufficiently put forth a justification. The court assumed that once the parties stipulated that there
had been no warrant, all the prosecution had to do was establish probable cause for the search. (RT
5:3-4, 27-28; 6:1-2.) Defense counsel had to once again point out that the prosecution had failed
to offer a justification for the search:
MS. FORRAR: Therefore, in order for this search to have been valid given the requirements
2 The Reply was filed November 20, 2000. (RT 2:23.) Judge Mahoney accepted it
and ultimately ruled on the basis of all the submitted papers, including the Reply. (RT 18:14-
16.)
4 Appellant’s Opening Brief/Gomez, A./HCR 5818of the Fourth Amendment, it not only had to be done with probable cause, but it also had to have
been subject to an exception to the warrant requirement, which has not been pled by the People.
MS. FORRAR: Williams requires that the People plead and point to a justification and
authority to demonstrate why the officers were authorized to proceed without a warrant.
They have met their burden as it pertains to probable cause. I don’t see an exception to any warrant
requirement that’s pled in their papers.
(RT 6:16-20; 7:2-9.)
Counsel Forrar proceeded to dissect the Opposition section by section, arriving at the
conclusion that none of them addressed “what the exception to the warrant requirement is.” (RT
7:11-20.) However, the court’s preoccupation with the patrol officer’s account that Gomez had been
driving the wrong way prevented it from recognizing that there were material facts in dispute which
could only be resolved by an evidentiary hearing. (RT 7:21-28; 8:1-3.) This was underscored by
the court’s reliance on City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, when it
stated: “Under the City of San Jose case, any declaration that’s filed has to be filed with detailed
facts in support of generalities.” (RT 8:8-10.).
City of San Jose, supra, concerned a criminal defendant’s motion for discovery of police
officers’ personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, holding that
“an accused in a criminal prosecution may compel discovery by demonstrating the requested
information will facilitate the ascertainment of facts and a fair trial.” (Pitchess v. Superior Court,
supra, 11 Cal.3d at 536.) To make a Pitchess motion,’ the defendant must include “[a]ffidavits
showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to
the subject matter involved in the pending litigation ...” (Evid. Code, § 1043, subd. (b)(3).) “A
3 The privileges and procedures surrounding what has come to be known as
“Pitchess motions” were enacted in 1978 and codified as set forth in Evidence Code sections
1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8.
5 Appellant’s Opening Brief/Gomez, A./#CR 5818defendant's motion to discover is addressed solely to the sound discretion of the trial court, which
has inherent power to order discovery when the interests of justice so demand.” (Pitches, v.
Superior Court, supra, 11 Cal.3d at 535.) The City of San Jose trial court was found to have abused
its discretion in granting the defendant’s motion. There, the defense “counsel’s declaration,
considered in conjunction with the police report, failed to make a showing of ‘good cause for the
discovery or disclosure sought’ under Evidence Code section 1043, subdivision (b)(3) because it did
not provide a ‘specific factual scenario’ establishing a ‘plausible factual foundation’ for ...
allegations of police misconduct and therefore did not set forth the materiality of ‘the discovery or
disclosure sought’ to ‘the subject matter involved in the pending litigation.’ [Citations.]” (City of
San Jose, supra, 67 Cal.App.4th at 1146-1147.)
This authority is wrongly applied to motions to suppress. The privileges and procedures
surrounding a Pitchess pretrial discovery motion are not applicable to 1538.5 motions. In a
suppression motion, the defendant has the “initial burden of raising the issue of an unreasonable
warrantless search or seizure by ‘simply assert[ing] the absence of a warrant and mak[ing] a prima
facie showing to support that assertion.” (Smith, supra, 95 Cal.App.4th at 296, quoting Williams,
supra, 20 Cal.4th at 130.) In entertaining a Pitchess motion, the court has to balance the defendant’s
right to a fair trial, while exercising its “wide discretion to protect against the disclosure of
information which might unduly hamper the prosecution or violate some other legitimate
governmental interest. [Citations.]” (Pitchess v. Superior Court, supra, 11 Cal.3d at 538.)
Conversely, Penal Code section 1538.5 subscribes to the “generally applicable and long-standing
rules of motion practice. ... In general, the moving party must carry the initial burden of informing
its opponent and the court of the specific basis for its motion. ... [W]hen defendants move to
suppress evidence under section 1538.5, they must inform the prosecution and the court of the
specific basis for their motion.” (Williams, supra, 20 Cal.4th at 129.) All that is required under a
1538.5 motion is that the defendant “need only be specific enough to give the prosecution and the
court reasonable notice.” (Williams, supra, 20 Cal.4th at 131.)
6 Appellant’s Opening Brief/Gomez, A./#CR 5818In the case at bar, the court sought to apply the holding of City of San Jose v. Superior Court,
supra, to the standard of review applicable to the denial of an evidentiary hearing on a motion to
suppress, in saying: “What [appellant’s reply] doesn’t do is provide a factual basis of the kind
required under the City of San Jose versus Superior Court [Citation.] to contest the facts reflected
in the People’s opposition, particularly the facts surrounding the stop. What I’ve got here is a
conclusion which says, quote, unquote, It’s material and in dispute. That does not meet the
requirements of the City of San Jose.” (RT 16:8-15.) Then, relying on both Williams, supra, and
City of San Jose v. Superior Court, supra, the court erred in finding that the defense failed to meet
its burden of proof by not specifying what facts made the seizure unreasonable:
THE COURT: My conclusion is based on both People versus Williams and the City of San
Jose that [affirmatively demonstrating the specific facts to dispute the assertions of the officers] is
Mr. Gomez’s obligation. Moreover, as long as we are talking about declarations, in the moving
declaration that Mr. Gomez had an obligation to demonstrate standing, the moving declaration is
completely silent on that subject. But in terms — but if | am to consider all the declarations, I don’t
think there is any doubt about the fact that the City of San Jose versus Superior Court, particularly
headnote 5,["] it’s very clear that it’s the defendant’s burden to explain in what respect the
statements in the police report are incorrect rather than just simply saying they are not correct.
(RT 17:21-28; 18:1-5.)
Obviously, Judge Mahoney’s interpretation of the defendant’s burden is in stark contrast to
the Williams court’s which observed: “[W]e can discern no reason for requiring defendants to guess
what justification the prosecution will offer at the risk of forfeiting the right to challenge that
4 Appellant believes that Judge Mahoney intended to refer to “footnote 5” but for
the fact that Footnote 5 cites to People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th
397, 407, and discusses the situation “where the People seek discovery of the peace officer
personnel records of a criminal defendant who was not employed as a police officer at the time
the crime was allegedly committed ....” In light of the foregoing, appellant believes that Judge
Mahoney merely misspoke and intended to say “footnote 6” which notes “the requirement of a
“specific factual scenario’ which provides a ‘plausible factual foundation’ for allegations of
police misconduct ....” which is consistent contextually with his discourse.
7 Appellant’s Opening Brief/Gomez, A./#CR 5818justification. ... Because law enforcement personnel, not the defendant, made the decision to
proceed without a warrant, they, not the defendant, are in the best position to know what
justification, if any, they had for doing so.” (Williams, supra, 20 Cal.4th at 129.)
Ultimately, here in the instant case, Judge Mahoney ruled on the basis of all the submitted
papers, including Gomez’s Reply. (RT 18:14-16.) In denying appellant’s motion, Judge Mahoney
determined that Gomez had not met his burden of raising the issue of an unreasonable search or
seizure and that the prosecution had shown justification by the probable cause to stop the vehicle.
(RT 18:16-23.)
The trial court was wrong on all three counts. First, Williams, supra, states that “when the
basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally
satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima
facie showing to support that assertion.” (Williams, supra, 20 Cal.4th at 130.) Second, and as
discussed more thoroughly below, both Penal Code section 1538.5, subdivision (c) and San Francisco
Superior Court Local Rule 16.10, subdivision (B) are clear that only if there are no material issues
in dispute can the court rule on the papers. Third, whether there was probable cause to initially stop
the vehicle ignores the fact that this was one of the issues in dispute — as explained in Section B.
below —., and therefore the judge could not rule without an evidentiary hearing.
B. The court erred in denying Gomez an evidentiary hearing on whether he drove down
a one-way street as it was a fact placed in issue by the pleading.
The parties’ moving papers and the record put material issues of fact in dispute. Gomez
averred that he had done nothing wrong - that he was disputing the facts alleged against him.
(Declaration 12-14; RT 3:23-26; 7:25-27.) The prosecution relied on the highway patrol report that
Gomez was driving the wrong way on a one-way street. (Opposition 2:26-28; 3:1-2.) The defense
brought the motion to suppress on the ground that appellant’s detention was not supported by
reasonable suspicion and that the resulting search was made without a warrant. (Motion 1:26-28; 2:1-
3, 21-26.) Where there is a conflict in the parties’ accounts of what occurred, the trial court as a
matter of law must resolve the issue in dispute. (Pen. Code, § 1538.5, subd. (c).)
8 Appellant’s Opening Brief/Gomez, A./#CR 5818Penal Code section 1538.5 provides in relevant part:
(c) Whenever a search or seizure motion is made in the municipal or
superior court as provided in this section, the judge or magistrate shall
receive evidence on any issue of fact necessary to determine the
motion.
Note that the statutory language uses the mandatory “shall” as opposed to the permissive “may.”
Given that, the statute requires that the court “receive evidence on any issue of fact necessary to
determine the motion.” By so doing, the court, acting as the finder of fact, would have been able to
determine whether the police officers had acted illegally in the first instance.
At a hearing on a motion to suppress, the superior court sitting as a trier of fact employs a
two-step process to make its ruling. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, relying on
People v. Lawler (1973) 9 Cal.3d 156, 160.)
In the first step the trial court must “find the facts” relating to the
challenged search or seizure: e.g., it must decide what the officer
actually perceived, or knew, or believed, and what action he took in
response. These are traditional questions of fact, and the statute
vests the superior court with the power to decide them. (Pen.
Code, § 1538.5, subd. (i).) Accordingly, we reaffirmed in Lawler (at
p. 160) that for the purpose of finding those facts “the power to judge
the credibility of the witnesses, resolve any conflicts in the testimony,
weigh the evidence and draw factual inferences, is vested in the trial
court. On appeal all presumptions favor the exercise of that power,
and the trial court's findings on such matters, whether express or
implied, must be upheld if they are supported by substantial
evidence.” No less important, however, is the second step of the
process. [{]] As we observed in Lawler, “The trial court also has
the duty to decide whether, on the facts found, the search was
unreasonable within the meaning of the Constitution.” (Ibid.)
(Leyba, supra, 29 Cal.3d at 596-597, bolding added.)
For the court in this case to simply rule on the papers without hearing any evidence was an
abdication of its duty. The pertinent code section mandates that the judge or magistrate hold an
evidentiary hearing to determine the motion.
“Common sense suggests that an evidentiary hearing only be required where there are
disputed issues of fact to be resolved. The express language of Penal Code section 1538.5 supports
this result. Subdivision (c) provides in part that the judge ‘shall receive evidence on any issue of fact
9 Appellant’s Opening Brief/Gomez, A./#CR 5818necessary to determine the motion.”” (People v. Davis (1989) 215 Cal.App.3d 1348, 1350.)
San Francisco Superior Court Local Rule 16.10, subdivision (B), while allowing that a ruling
may be made on the basis of the pleadings alone, still provides that where there are disputed material
issues of fact, evidence must be presented:
B. Upon a review of the pleadings and any affidavits or declarations
from either side presenting material issues of fact, the court may rule
upon the motion based upon the pleadings, affidavits or declarations.
Tf such pleadings, declarations or affidavits raise no disputed material
issue of fact, the court may grant or deny the motion without requiring
either side to present any further evidence. The court may, if it
determines it to be necessary, set a hearing to receive further
evidence on any issues of fact necessary to determine the motion.
(Super. Ct. San Francisco County, Local Rules, rule 16.10, subd. (B), bolding added.)
In appellant’s motion to suppress, he asserted his reasonable expectation of privacy in his
person (Motion 3:1-2), thus there is no question of standing. “Section 1538.5, by its terms, authorizes
a motion to suppress if ‘[t]he search or seizure without a warrant was unreasonable.” (Williams,
supra, 20 Cal.4th at 129, quoting People v. Curley (1970) 12 Cal.App. 3d 732, 746.) In his moving
papers the defendant stated that he was unlawfully stopped for no reason and without a warrant
(Motion 1:26-28; 2:1-3, 21-26.) Because this was in direct contradiction to the police incident report,
which as mentioned above, was the foundation for the prosecution’s version of the facts, the court
was obliged to permit the parties to present evidence of their respective positions.
As discussed earlier, the defendant had — and met — the initial burden of raising the issue
to make out a prima facie case of an illegal search. The burden then shifted to the prosecution to
establish by a preponderance of the evidence the facts justifying the warrantless search. (People v.
James (1977) 19 Cal.3d 99, 106 & fn. 4.) This rule of motion practice was not satisfied in that the
People failed to “provide an exception any warrant requirement.” (RT 3:27-28; 4:1, 7-16; 7:2-4, 18-
20; 9:25-28; 10:1, 7-12, 17-20; 11:7-8, 10-13.)
““The determinative inquiry in all cases is whether the party opposing the motion had fair
notice of the moving party’s argument and fair opportunity to present responsive evidence.’
(Citation.) A defendant’s motion that argues a search or seizure was unreasonable because there was
10 Appellant’s Opening Brief/Gomez, A./#CR 5818no warrant gives the prosecution fair notice of the defendant’s argument. (Citation.)” (Smith, supra,
95 Cal.App.4th at 296, quoting Williams, supra, 20 Cal.4th at 135.) In appellant’s Motion and
Reply, defense counsel appended declarations. In her declaration appended to the Motion, she stated
her belief that “some or all of [the] facts are contested or in dispute making a hearing on this motion
necessary and proper.” (Declaration [10/26/00] 9-14.) In her Declaration of Counsel appended to
the Reply, she unambiguously put the prosecution and the court on notice “that the justification for
the officers initial stop of Mr. Gomez, namely that he was driving northbound on an southbound
street, is materially in dispute.” (Declaration of Counsel [11/20/00] 9-13.) In open court, Deputy
Public Defender Forrar expressly noted both declarations for the record. (RT 16:16-28; 17:1-7.)
With no reasonable basis for the initial stop, the seizure was illegal. All evidence seized as
the result of such a seizure which has exceeded permissible bounds is the “fruit of the poisonous tree”
and should have been excluded. (Wong Sun v. United States (1973) 371 U.S. 471, 488 .) Illegally
obtained confessions, admissions, and physical evidence are barred. (Lockridge v. Superior Court
(1970) 3 Cal.3d 166, 169.) Gomez’s motion sought to suppress the results of the urine sample or any
other laboratory examinations, any and all observations and statements of the arresting officers, any
and all of his statements, and any and all items found on his person or in his vehicle. (Motion 2:4-
22.)
Gomez had averred and was prepared to prove at the hearing on the motion to suppress that
the police acted without benefit of warrant, that the detention was unreasonable and therefore illegal,
and that certain fruits were obtained as a result of that warrantless act. Appellant was prepared to
prove that a reasonable expectation of privacy existed in the items seized and/or the area searched
at the time of the search. The prosecution’s opposition directly contradicted appellant’s version of
the facts. However, the court appeared to accept the prosecution’s version at face value and denied
appellant his due process right to a hearing where the evidence would be presented. Consequently,
the court abused its discretion by ruling on the motion without hearing the evidence.
Without any evidence presented for the record, the court failed to state what compelling
11 Appellant’s Opening Brief/Gomez, A./#CR 5818reasons were the basis for denying the motion merely on the pleadings. A silent record can yield no
proper and meaningful appellate review. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
The standard for reviewing the denial of a suppression motion is stated as follows:
Our standard on appeal from the denial of a motion to suppress is well
established. We defer to the trial court's factual findings where
supported by substantial evidence, but exercise our independent
judgment to determine whether, on the facts found, the search was
reasonable under Fourth Amendment standards.
(People v. Brown (1998) 62 Cal.App.4th 493, 496, citing to Leyba, supra, 29 Cal.3d at 596-597.)
On the record below, there are neither the trial court's factual findings nor substantial evidence.
Cc. The court was in violation of Williams when it made its decision on the CHP report
which was being challenged by the defense.
In the absence of statutory permission, an affidavit is not competent evidence; though made
under oath, it is hearsay because there has been no opportunity to cross-examine the affiant. (See
Code Civ. Pro., § 2003 [defining affidavit]; Fewel v. Fewel (1943) 23 Cal.2d 431, 438; Moon v.
Moon (1944) 62 Cal.App.2d 185, 188; Estate of Fraysher (1956) 47 C.2d 131, 135 [rule stated, but
no error where admitted by consent or without objection]; People v. Dickinson (1976) 59 Cal.App.3d
314, 319.) Penal Code section 1538.5 makes no mention of affidavits or declarations, let alone
mandating defense acquiescence of untested hearsay. Counsel’s declaration specifically challenged
the facts underlying the justification. The court did not hold the prosecution to its burden of proof
when it relied on the highway patrol officer’s report.’ In point of fact, Deputy Public Defender Forrar
charged: “If the court were to take the police report as sufficient justification and notice to the
defendant as to why the officers were allowed to proceed without a warrant, I believe the court would
be in violation of Williams.” (RT 14:23-27.) According to the very roots of Anglo-Saxon
5 THE COURT: Why hasn’t it been pled by the People? I have a police
report here that says that Mr. Gomez was driving the wrong way on a one-way street. He was
then stopped, and after the stop, for reasons that are, as far as I know, undisputed, the officers
proceeded to conduct a DUI field sobriety test, at which point, they, having completed those,
they then took Mr. Gomez down to the station for a test. I’ve forgotten whether it was a blood or
breath test. So, what is it that -- where is the failure of the People?
(RT 6:21-28; 7:1.)
12 Appellant’s Opening Brief/Gomez, A/#CR 5818jurisprudence, proof includes the right of the accused to confront and cross-examine the accuser.
(See U.S. Const., 6th Amend.)
Accordingly, “[s]ection 1538.5 and Williams, supra, provide a defendant with the right to
fully litigate the validity ofa search or seizure on the basis of evidence presented at a special hearing
on a suppression motion if the defendant files an initial brief making a prima facie case. (Smith,
supra, 95 Cal.App.4th at 302-303.) In this regard, Gomez’s Motion, Reply, and his counsel’s
declarations plainly put the prosecutor on notice that there were material issues in dispute, thus
entitling him to an evidentiary hearing. Appellant seeks the opportunity to confront his accusers and
challenge the prosecution’s assertion that the initial traffic stop was valid under the Fourth
Amendment; it is asked that this matter be remanded to the lower court for an evidentiary hearing.
13 Appellant’s Opening Brief/Gomez, A./#HCR 5818CONCLUSION
The court must reverse this ruling because:
1) Gomez made his prima facie case when he moved to suppress evidence obtained in
a warrantless search, thus satisfying the initial pleading burden under Penal Code
section 1538.5 and People v. Williams, supra;
2) The trier of fact failed to hold the prosecution to its burden of proof that there was
justification for the illegal seizure and search; and.
3) On the face of all the moving papers, Gomez demonstrated his right to a full
evidentiary hearing.
Based on the foregoing, it is essential that this court uphold appellant Gomez’s constitutional and due
process rights by reversing the order of denial of the suppression motion and suppressing the
evidence.
Respectfully submitted
KIMIKO BURTON
Public Defender
City and County of San Francisco
RANDALL P. MARTIN
Chief Attorney
ALISA J. KIM
Deputy Public Defender
By: ALISA J7KIM
Deputy Public Defender
Attorney for ALDO GOMEZ
14 Appellant’s Opening Brief/Gomez, A/#CR 5818I, the undersigned say:
PROOF OF SERVICE
I am over eighteen years of age and not a party to the above action. My business address
is 555 Seventh Street, San Francisco, California 94103.
On
2.19
Executed on
, 2002, I personally served the attached on the following parties:
OFFICE OF THE DISTRICT ATTORNEY
City and County of San Francisco
LAURA ZUNINO
Assistant District Attorney
850 Bryant Street
San Francisco, CA 94103
Municipal Court of the City and County of San Francisco
Hall of Justice, Room 201
850 Bryant Street
San Francisco, CA 94103
ATTN: Hon. Judge Patrick J. Mahoney
Municipal Court of the City and County of San Francisco
Hall of Justice, Room 201
850 Bryant Street
San Francisco, CA 94103
ATTN: Janet Gonzaga, Appeals Clerk
I declare under penalty of perjury that the foregoing is true and correct.
50
, 2002 at Sap Francisco, California. *
cle,
me
Ay. - re
lise J. ley
Appellant’s Opening Brief/Gomez, A./#CR 5818
Preview
MUA San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Mar-27-2002 11:28 am Case Number: APP-01-005818 Filing Date: Mar-18-2002 11:25 Juke Box: 001 Image: 00387326 APPELLANT'S OPENING BRIEF FILED:(R/B DUE 4/08/02.) PEOPLE OF THE STATE OF CALIFORNIA VS. ALDO GOMEZ 001A00387326 Instructions: Please place this sheet on top of the document to be scanned.IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO APPELLATE DIVISION PEOPLE OF THE STATE OF CALIFORNIA, APPELLATE ACTION #CR 5818 Plaintiff/Respondent. LIMITED JURISDICTION No: 1947129 vs. ALDO GOMEZ, Defendant/Appellant. ~ Uepuiy Clerk” APPELLANT’S OPENING BRIEF On Appeal From the Order Denying Defendant’s Motion to Suppress in the Municipal Court of the State of California in and for the City and County of San Francisco Honorable Patrick J. Mahoney, Presiding KIMIKO BURTON Public Defender City and County of San Francisco RANDALL P. MARTIN Chief Attorney ALISA J. KIM (SBN 146226) Deputy Public Defender 555 Seventh Street San Francisco, CA 94103 (415) 575-8822: (415) 553-1671 Attorneys for Defendant/Appellant Appellant’s Opening Brief/Gomez, A./#CR 5818TABLE OF CONTENTS TABLE OF AUTHORITIES .... 0.0... c ccc eect n nett eee il MEMORANDUM OF POINTS AND AUTHORITIES ............0 0000s e cece eee eee 1 STATEMENT OF THE CASE ...... 0.0... c cece nec ee een ne eens 1 STATEMENT OF FACTS «2.0.06. ence ete eee ee 2 APPELLANT’S VERSION OF THE FACTS ..............000 00000 e eee 2 PROSECUTION’S VERSION OF THE FACTS ..........0. 00.000 e eee 3 ARGUMENT 1.0... 200. cnet erent enn e teen nes 3 Gomez was denied his right to an evidentiary hearing when he raised a contested factual issue 0.0... ccc teen eens 3 A. Gomez met his burden of raising the issue by alleging the lack of a warrant; the judge erred in requiring him to specify more facts to obtain a hearing ...... 0... 3 B. The court erred in denying Gomez an evidentiary hearing on whether he drove down a one-way street as it was a fact placed in issue by the pleading ........ 00.0... c cece eee eee eee 8 Cc. The court was in violation of Williams when it made its decision on the CHP report which was being challenged by the defense eee eee e eee eee eens 12 CONCLUSION 2.00.6 ccc nner e eet ee ee beeen es 14 i Appellant’s Opening Brief/Gomez, A./#CR 5818TABLE OF AUTHORITIES FEDERAL CASES Wong Sun y. United States (1973) 371 US. 471 oo eet tenet eens 11 STATE CASES City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135 00... 0.200 ccc cece eee e eee eee tee e eee eres 5-7 Estate of Fraysher (1956) 47 C.2d 131 2 eet eee nee ene 12 Fewel v. Fewel (1943) 23 Cal.2d 431 20... t erent eee ee 12 Lockridge v. Superior Court (1970) 3 Cal.3d 166 2... ence cnet eee ences 11 Moon v. Moon (1944) 62 Cal.App.2d 185 2.0.0.0 cence etn n ene ee 12 People v. Brown (1998) 62 Cal. App.4th 493 00.0... cece ccc cece cece eeeeeeeveesveveereees 12 People v. Curley (1970) 12 Cal. App. 3d 732 2.0... e ene ee 10 People v. Davis (1989) 215 Cal. App.3d 1348 2.000 cece ccc e eee e cece cess ee ceeeeeneeee 9 People y. Dickinson (1976) 59 Cal.App.3d 314 2.0.0.0 cece neces 12 People y. James (1977) 19 Cal.3d 99 Loe cence eee ee 10 People v. Lawler (1973) 9 Cal.3d 156 2... ect eee ene nent eee ee 9 People v. Leyba (1981) 29 Cal.3d 591 0... cece e eens 9, 12 People v. Mooc (2001) 26 Cal.4th 1216 2... cece net e nee e nen eee 11 People v. Smith (2002) 95 Cal.App.4th 283 2... cece nnn eee e ee 3, 6, 13 ii Appellant’s Opening Brief/Gomez, A./#CR 5818People v. Superior Court (Gremminger) (1997) 58 Cal. App.4th 397 2 o.oo eccecc cece seve eases People v. Williams (1999) 20 Cal.4th 119 oo. eee eee Pitchess v. Superior Court (1974) 11 Cal.3d 531 00.0... eee LOCAL RULES San Francisco Superior Court Local Rule 16.10 ............. 00000 CONSTITUTIONAL PROVISIONS The Sixth Amendment to the United States Constitution ............ iii Appellant’s Opening Brief/Gomez, A./#CR 5818The issue on appeal before this court is: Appellant Gomez was denied his right to an evidentiary hearing when he raised a contested issue of fact: A. In motions to suppress, the defense has the initial burden of raising the issue of an unreasonable warrantless search or seizure. Here, Gomez asserted that there was no warrant in his initial papers. The lack of a warrant was never controverted. B. Gomez’s declaration of counsel asserted that there were “facts ... in dispute making a hearing on this motion necessary and proper.” (Declaration [10/26/00] 13-14.) The prosecution claimed he drove the wrong way down a one-way street. Gomez averred he did not. Cc. The court erred when it decided the motion to suppress on the pleadings. MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF THE CASE Defendant/appellant ALDO GOMEZ was charged with two misdemeanor counts of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with a blood alcohol level of .08% (Veh. Code, § 23152, subd. (b)); both counts alleged to have occurred on September 30, 2000. Gomez filed a Motion To Suppress Evidence Pursuant to Penal Code Section 1538.5 claiming that his rights under the Fourth Amendment were violated by an illegal seizure, which was unreasonable for lack ofa warrant and any reasonable suspicion that he was engaged in any criminal activity. In her declaration, Deputy Public Defender Michele Forrar gave notice that facts were in dispute “making a hearing on this motion necessary and proper.” (Declaration [10/26/00] 13-14.) The prosecution countered in its Motion To Oppose Defendant’s Motion To Suppress Evidence that Gomez had been driving the wrong way on a one-way street (Opposition 5:1-3) but gave no justification for the warrantless search or seizure. In his Reply To People’s Opposition, Gomez maintained that his detention was not supported by reasonable suspicion that he was involved in any criminal activity and that the warrantless arrest was without probable cause for which the prosecution failed to provide any justification. (Reply 1: 21-23; 2:2-3.) Appended to the Reply was a supplementary Declaration of Counsel in which Gomez denied that he had been driving northbound on a southbound street. (Declaration of Counsel [11/20/00] 12-13.) At the November 21, 2000 hearing, the Honorable Judge Patrick Mahoney initially 1 Appellant’s Opening Brief/Gomez, A/#CR 5818challenged defense counsel Forrar on whether the reply had been timely filed. (RT 2:21-22.) This devolved into a discussion specifically about People v. Williams (1999) 20 Cal.4th 119 and what factual and legal bases a defendant must set forth in its motion and what necessitates the filing of the reply brief. Judge Mahoney denied the motion on three grounds: (1) the defense failed to meet its burden of “pointing to specific facts that would warrant a hearing”; (2) the court could decide the motion on the papers; and (3) the court believed there was probable cause to stop Gomez because he was seen driving the wrong way on a one-way street. (RT 18:14-23.) Deputy Public Defender Forrar stated for the record that Gomez was prepared to proceed with a hearing that day and that his witnesses were present. (RT 19:1-4.) Judge Mahoney observed for the record that he was assuming the prosecution was likewise ready to proceed, with which the assistant district attorney concurred. (RT 19:5-8.) STATEMENT OF FACTS APPELLANT’S VERSION OF THE FACTS “The pertinent facts for this first pleading are that the search and seizure was conducted without a warrant and that the defendant had a reasonable expectation of privacy in the area searched and the items seized. (See attached declaration of counsel in support of motion.)” (Motion 4:3-5.) The Declaration stated that “there exist[ed] a valid factual basis for the statement of facts contained in this motion and that some or all of those facts are contested or in dispute making a hearing on this motion necessary and proper.” (Declaration [10/26/00] 12-14.) The supplementary Declaration of Counsel appended to the Reply stated that “the justification for the officers initial stop of Mr. Gomez, namely that he was driving northbound on a southbound street, is materially in dispute.” (Declaration of Counsel [11/20/00] 9-13.) Throughout the hearing on the suppression motion, Gomez indicated that he was prepared to present evidence to dispute the facts relied upon by the prosecution in the California Highway Patrol Report #00-1742. (RT 7:25-28; 8: 1-3; 13:12-15; 17:13-17; 19:1-4.) 2 Appellant’s Opening Brief/Gomez, A./HCR 5818PROSECUTION’S VERSION OF THE FACTS! “On September 30, 2000, around 2:37 A.M., Officer C. Bowling was riding with his partner Officer Zerilli in a marked CHP patrol car on southbound 8" street approaching a red signal light at Bryant Street when they saw a car’s headlights coming toward them. The car was a gray Acura traveling northbound at approximately 10 miles per hour on 8" Street, which is a one-way street at that location. Officer Zerilli stopped the car at the Bryant Street stoplight and turned on the car’s overhead lights. The Acura made a U-turn just south of Bryant Street. Officers Bowling and Zerilli followed the Acura with overhead lights flashing, and stopped the Acura on Brannan Street. “Officer Bowling approached the Acura on the passenger side and contacted the driver through the right front window. He identified the driver as Aldo Gomez (the Defendant) through his California Driver’s License. Officer Bowling asked Mr. Gomez whether he realized he was driving the wrong way ona one way street. As Officer Bowling talked with Mr. Gomez, he noticed that Mr. Gomez’s eyes were red and glassy and his speech was slow and slurred. He also smelled the odor of alcohol coming from within the car. Officer Bowling asked Mr. Gomez if he had had anything to drink and he replied that he had had four Coronas at the Glass Cat bar.” (Opposition 2:26-28; 3:1-13.) ARGUMENT Gomez was denied his right to an evidentiary hearing when he raised a contested factual issue. A. Gomez met his burden of raising the issue by alleging the lack of a warrant; the judge erred in requiring him to specify more facts to obtain a hearing. “A defendant meets the initial burden of raising the issue of an unreasonable warrantless search or seizure by ‘simply assert[ing] the absence of'a warrant and mak[ing] a prima facie showing to support that assertion.” (People v. Smith (2002) 95 Cal.App.4th 283, 296, quoting Williams, supra, 20 Cal.4th at 130.) Under Penal Code section 1538.5, the defendant must address two concepts — (1) assert not only that the search or seizure was without a warrant but (2) also explain why it was unreasonable, that is to say, that it must not fall within any exception to the warrant requirement. Appellant Gomez met the initial burden of producing evidence of his prima facie case ofan illegal search or seizure. His Motion stated that the search and seizure were conducted without benefit of a warrant and that he was detained without reasonable suspicion and arrested without ' The first two paragraphs of the Opposition’s Statement of Facts are presented here. The prosecution, in its moving papers, referred to and appended the California Highway Patrol Report #00-1742, which included not only the patrol officer’s narrative but also the results of the Field Sobriety Tests administered, a copy of Aldo Gomez’s driver’s license, the California Highway Patrol Intoxilyzer Model 5000 Checklist, and a standard Department of Motor Vehicles form DS 367 stating the blood alcohol content test results. 3 Appellant’s Opening Brief/Gomez, A./#CR 5818probable cause. (Motion 2:25-26; 4:3-5.) In his Reply, Gomez repeated that there were no legal grounds for his detention and pointed out that the prosecution in its Opposition had failed to justify the warrantless search and seizure. (Reply 1:21-28; 2:1-3.) At the suppression hearing, the court initially invoked Williams, supra, to query defense counsel about the timeliness of her filing of the reply brief and whether or not in fact the defense was legally obliged to file one in the first place.? Defense counsel explained Williams, supra, to mean that the defendant has the burden of raising an issue, which requires the defendant to first make out a prima facie case. Then, the burden shifts to the prosecution to justify the warrantless search or seizure. “[O]nce the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.] Otherwise, defendants would not meet their burden under section 1538.5 of specifying why the search or seizure without a warrant was ‘unreasonable.’ This specificity requirement does not place the burden of proof on defendants. [Citation.]” (Williams, supra, 20 Cal.4th at 130.) The Williams court goes on to note the defendant’s burden of raising an issue as being distinct from the prosecution’s burden of proof. “The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.]” (Williams, supra, 20 Cal.4th at 130.) By negative implication, therefore, failure by the prosecution to set forth a justification for the police’s conduct relieves the defense of having to reply. There followed an extensive discussion about whether in fact the prosecution’s papers did sufficiently put forth a justification. The court assumed that once the parties stipulated that there had been no warrant, all the prosecution had to do was establish probable cause for the search. (RT 5:3-4, 27-28; 6:1-2.) Defense counsel had to once again point out that the prosecution had failed to offer a justification for the search: MS. FORRAR: Therefore, in order for this search to have been valid given the requirements 2 The Reply was filed November 20, 2000. (RT 2:23.) Judge Mahoney accepted it and ultimately ruled on the basis of all the submitted papers, including the Reply. (RT 18:14- 16.) 4 Appellant’s Opening Brief/Gomez, A./HCR 5818of the Fourth Amendment, it not only had to be done with probable cause, but it also had to have been subject to an exception to the warrant requirement, which has not been pled by the People. MS. FORRAR: Williams requires that the People plead and point to a justification and authority to demonstrate why the officers were authorized to proceed without a warrant. They have met their burden as it pertains to probable cause. I don’t see an exception to any warrant requirement that’s pled in their papers. (RT 6:16-20; 7:2-9.) Counsel Forrar proceeded to dissect the Opposition section by section, arriving at the conclusion that none of them addressed “what the exception to the warrant requirement is.” (RT 7:11-20.) However, the court’s preoccupation with the patrol officer’s account that Gomez had been driving the wrong way prevented it from recognizing that there were material facts in dispute which could only be resolved by an evidentiary hearing. (RT 7:21-28; 8:1-3.) This was underscored by the court’s reliance on City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, when it stated: “Under the City of San Jose case, any declaration that’s filed has to be filed with detailed facts in support of generalities.” (RT 8:8-10.). City of San Jose, supra, concerned a criminal defendant’s motion for discovery of police officers’ personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, holding that “an accused in a criminal prosecution may compel discovery by demonstrating the requested information will facilitate the ascertainment of facts and a fair trial.” (Pitchess v. Superior Court, supra, 11 Cal.3d at 536.) To make a Pitchess motion,’ the defendant must include “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation ...” (Evid. Code, § 1043, subd. (b)(3).) “A 3 The privileges and procedures surrounding what has come to be known as “Pitchess motions” were enacted in 1978 and codified as set forth in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. 5 Appellant’s Opening Brief/Gomez, A./#CR 5818defendant's motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand.” (Pitches, v. Superior Court, supra, 11 Cal.3d at 535.) The City of San Jose trial court was found to have abused its discretion in granting the defendant’s motion. There, the defense “counsel’s declaration, considered in conjunction with the police report, failed to make a showing of ‘good cause for the discovery or disclosure sought’ under Evidence Code section 1043, subdivision (b)(3) because it did not provide a ‘specific factual scenario’ establishing a ‘plausible factual foundation’ for ... allegations of police misconduct and therefore did not set forth the materiality of ‘the discovery or disclosure sought’ to ‘the subject matter involved in the pending litigation.’ [Citations.]” (City of San Jose, supra, 67 Cal.App.4th at 1146-1147.) This authority is wrongly applied to motions to suppress. The privileges and procedures surrounding a Pitchess pretrial discovery motion are not applicable to 1538.5 motions. In a suppression motion, the defendant has the “initial burden of raising the issue of an unreasonable warrantless search or seizure by ‘simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion.” (Smith, supra, 95 Cal.App.4th at 296, quoting Williams, supra, 20 Cal.4th at 130.) In entertaining a Pitchess motion, the court has to balance the defendant’s right to a fair trial, while exercising its “wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest. [Citations.]” (Pitchess v. Superior Court, supra, 11 Cal.3d at 538.) Conversely, Penal Code section 1538.5 subscribes to the “generally applicable and long-standing rules of motion practice. ... In general, the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion. ... [W]hen defendants move to suppress evidence under section 1538.5, they must inform the prosecution and the court of the specific basis for their motion.” (Williams, supra, 20 Cal.4th at 129.) All that is required under a 1538.5 motion is that the defendant “need only be specific enough to give the prosecution and the court reasonable notice.” (Williams, supra, 20 Cal.4th at 131.) 6 Appellant’s Opening Brief/Gomez, A./#CR 5818In the case at bar, the court sought to apply the holding of City of San Jose v. Superior Court, supra, to the standard of review applicable to the denial of an evidentiary hearing on a motion to suppress, in saying: “What [appellant’s reply] doesn’t do is provide a factual basis of the kind required under the City of San Jose versus Superior Court [Citation.] to contest the facts reflected in the People’s opposition, particularly the facts surrounding the stop. What I’ve got here is a conclusion which says, quote, unquote, It’s material and in dispute. That does not meet the requirements of the City of San Jose.” (RT 16:8-15.) Then, relying on both Williams, supra, and City of San Jose v. Superior Court, supra, the court erred in finding that the defense failed to meet its burden of proof by not specifying what facts made the seizure unreasonable: THE COURT: My conclusion is based on both People versus Williams and the City of San Jose that [affirmatively demonstrating the specific facts to dispute the assertions of the officers] is Mr. Gomez’s obligation. Moreover, as long as we are talking about declarations, in the moving declaration that Mr. Gomez had an obligation to demonstrate standing, the moving declaration is completely silent on that subject. But in terms — but if | am to consider all the declarations, I don’t think there is any doubt about the fact that the City of San Jose versus Superior Court, particularly headnote 5,["] it’s very clear that it’s the defendant’s burden to explain in what respect the statements in the police report are incorrect rather than just simply saying they are not correct. (RT 17:21-28; 18:1-5.) Obviously, Judge Mahoney’s interpretation of the defendant’s burden is in stark contrast to the Williams court’s which observed: “[W]e can discern no reason for requiring defendants to guess what justification the prosecution will offer at the risk of forfeiting the right to challenge that 4 Appellant believes that Judge Mahoney intended to refer to “footnote 5” but for the fact that Footnote 5 cites to People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 407, and discusses the situation “where the People seek discovery of the peace officer personnel records of a criminal defendant who was not employed as a police officer at the time the crime was allegedly committed ....” In light of the foregoing, appellant believes that Judge Mahoney merely misspoke and intended to say “footnote 6” which notes “the requirement of a “specific factual scenario’ which provides a ‘plausible factual foundation’ for allegations of police misconduct ....” which is consistent contextually with his discourse. 7 Appellant’s Opening Brief/Gomez, A./#CR 5818justification. ... Because law enforcement personnel, not the defendant, made the decision to proceed without a warrant, they, not the defendant, are in the best position to know what justification, if any, they had for doing so.” (Williams, supra, 20 Cal.4th at 129.) Ultimately, here in the instant case, Judge Mahoney ruled on the basis of all the submitted papers, including Gomez’s Reply. (RT 18:14-16.) In denying appellant’s motion, Judge Mahoney determined that Gomez had not met his burden of raising the issue of an unreasonable search or seizure and that the prosecution had shown justification by the probable cause to stop the vehicle. (RT 18:16-23.) The trial court was wrong on all three counts. First, Williams, supra, states that “when the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion.” (Williams, supra, 20 Cal.4th at 130.) Second, and as discussed more thoroughly below, both Penal Code section 1538.5, subdivision (c) and San Francisco Superior Court Local Rule 16.10, subdivision (B) are clear that only if there are no material issues in dispute can the court rule on the papers. Third, whether there was probable cause to initially stop the vehicle ignores the fact that this was one of the issues in dispute — as explained in Section B. below —., and therefore the judge could not rule without an evidentiary hearing. B. The court erred in denying Gomez an evidentiary hearing on whether he drove down a one-way street as it was a fact placed in issue by the pleading. The parties’ moving papers and the record put material issues of fact in dispute. Gomez averred that he had done nothing wrong - that he was disputing the facts alleged against him. (Declaration 12-14; RT 3:23-26; 7:25-27.) The prosecution relied on the highway patrol report that Gomez was driving the wrong way on a one-way street. (Opposition 2:26-28; 3:1-2.) The defense brought the motion to suppress on the ground that appellant’s detention was not supported by reasonable suspicion and that the resulting search was made without a warrant. (Motion 1:26-28; 2:1- 3, 21-26.) Where there is a conflict in the parties’ accounts of what occurred, the trial court as a matter of law must resolve the issue in dispute. (Pen. Code, § 1538.5, subd. (c).) 8 Appellant’s Opening Brief/Gomez, A./#CR 5818Penal Code section 1538.5 provides in relevant part: (c) Whenever a search or seizure motion is made in the municipal or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion. Note that the statutory language uses the mandatory “shall” as opposed to the permissive “may.” Given that, the statute requires that the court “receive evidence on any issue of fact necessary to determine the motion.” By so doing, the court, acting as the finder of fact, would have been able to determine whether the police officers had acted illegally in the first instance. At a hearing on a motion to suppress, the superior court sitting as a trier of fact employs a two-step process to make its ruling. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, relying on People v. Lawler (1973) 9 Cal.3d 156, 160.) In the first step the trial court must “find the facts” relating to the challenged search or seizure: e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response. These are traditional questions of fact, and the statute vests the superior court with the power to decide them. (Pen. Code, § 1538.5, subd. (i).) Accordingly, we reaffirmed in Lawler (at p. 160) that for the purpose of finding those facts “the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.” No less important, however, is the second step of the process. [{]] As we observed in Lawler, “The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.” (Ibid.) (Leyba, supra, 29 Cal.3d at 596-597, bolding added.) For the court in this case to simply rule on the papers without hearing any evidence was an abdication of its duty. The pertinent code section mandates that the judge or magistrate hold an evidentiary hearing to determine the motion. “Common sense suggests that an evidentiary hearing only be required where there are disputed issues of fact to be resolved. The express language of Penal Code section 1538.5 supports this result. Subdivision (c) provides in part that the judge ‘shall receive evidence on any issue of fact 9 Appellant’s Opening Brief/Gomez, A./#CR 5818necessary to determine the motion.”” (People v. Davis (1989) 215 Cal.App.3d 1348, 1350.) San Francisco Superior Court Local Rule 16.10, subdivision (B), while allowing that a ruling may be made on the basis of the pleadings alone, still provides that where there are disputed material issues of fact, evidence must be presented: B. Upon a review of the pleadings and any affidavits or declarations from either side presenting material issues of fact, the court may rule upon the motion based upon the pleadings, affidavits or declarations. Tf such pleadings, declarations or affidavits raise no disputed material issue of fact, the court may grant or deny the motion without requiring either side to present any further evidence. The court may, if it determines it to be necessary, set a hearing to receive further evidence on any issues of fact necessary to determine the motion. (Super. Ct. San Francisco County, Local Rules, rule 16.10, subd. (B), bolding added.) In appellant’s motion to suppress, he asserted his reasonable expectation of privacy in his person (Motion 3:1-2), thus there is no question of standing. “Section 1538.5, by its terms, authorizes a motion to suppress if ‘[t]he search or seizure without a warrant was unreasonable.” (Williams, supra, 20 Cal.4th at 129, quoting People v. Curley (1970) 12 Cal.App. 3d 732, 746.) In his moving papers the defendant stated that he was unlawfully stopped for no reason and without a warrant (Motion 1:26-28; 2:1-3, 21-26.) Because this was in direct contradiction to the police incident report, which as mentioned above, was the foundation for the prosecution’s version of the facts, the court was obliged to permit the parties to present evidence of their respective positions. As discussed earlier, the defendant had — and met — the initial burden of raising the issue to make out a prima facie case of an illegal search. The burden then shifted to the prosecution to establish by a preponderance of the evidence the facts justifying the warrantless search. (People v. James (1977) 19 Cal.3d 99, 106 & fn. 4.) This rule of motion practice was not satisfied in that the People failed to “provide an exception any warrant requirement.” (RT 3:27-28; 4:1, 7-16; 7:2-4, 18- 20; 9:25-28; 10:1, 7-12, 17-20; 11:7-8, 10-13.) ““The determinative inquiry in all cases is whether the party opposing the motion had fair notice of the moving party’s argument and fair opportunity to present responsive evidence.’ (Citation.) A defendant’s motion that argues a search or seizure was unreasonable because there was 10 Appellant’s Opening Brief/Gomez, A./#CR 5818no warrant gives the prosecution fair notice of the defendant’s argument. (Citation.)” (Smith, supra, 95 Cal.App.4th at 296, quoting Williams, supra, 20 Cal.4th at 135.) In appellant’s Motion and Reply, defense counsel appended declarations. In her declaration appended to the Motion, she stated her belief that “some or all of [the] facts are contested or in dispute making a hearing on this motion necessary and proper.” (Declaration [10/26/00] 9-14.) In her Declaration of Counsel appended to the Reply, she unambiguously put the prosecution and the court on notice “that the justification for the officers initial stop of Mr. Gomez, namely that he was driving northbound on an southbound street, is materially in dispute.” (Declaration of Counsel [11/20/00] 9-13.) In open court, Deputy Public Defender Forrar expressly noted both declarations for the record. (RT 16:16-28; 17:1-7.) With no reasonable basis for the initial stop, the seizure was illegal. All evidence seized as the result of such a seizure which has exceeded permissible bounds is the “fruit of the poisonous tree” and should have been excluded. (Wong Sun v. United States (1973) 371 U.S. 471, 488 .) Illegally obtained confessions, admissions, and physical evidence are barred. (Lockridge v. Superior Court (1970) 3 Cal.3d 166, 169.) Gomez’s motion sought to suppress the results of the urine sample or any other laboratory examinations, any and all observations and statements of the arresting officers, any and all of his statements, and any and all items found on his person or in his vehicle. (Motion 2:4- 22.) Gomez had averred and was prepared to prove at the hearing on the motion to suppress that the police acted without benefit of warrant, that the detention was unreasonable and therefore illegal, and that certain fruits were obtained as a result of that warrantless act. Appellant was prepared to prove that a reasonable expectation of privacy existed in the items seized and/or the area searched at the time of the search. The prosecution’s opposition directly contradicted appellant’s version of the facts. However, the court appeared to accept the prosecution’s version at face value and denied appellant his due process right to a hearing where the evidence would be presented. Consequently, the court abused its discretion by ruling on the motion without hearing the evidence. Without any evidence presented for the record, the court failed to state what compelling 11 Appellant’s Opening Brief/Gomez, A./#CR 5818reasons were the basis for denying the motion merely on the pleadings. A silent record can yield no proper and meaningful appellate review. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) The standard for reviewing the denial of a suppression motion is stated as follows: Our standard on appeal from the denial of a motion to suppress is well established. We defer to the trial court's factual findings where supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search was reasonable under Fourth Amendment standards. (People v. Brown (1998) 62 Cal.App.4th 493, 496, citing to Leyba, supra, 29 Cal.3d at 596-597.) On the record below, there are neither the trial court's factual findings nor substantial evidence. Cc. The court was in violation of Williams when it made its decision on the CHP report which was being challenged by the defense. In the absence of statutory permission, an affidavit is not competent evidence; though made under oath, it is hearsay because there has been no opportunity to cross-examine the affiant. (See Code Civ. Pro., § 2003 [defining affidavit]; Fewel v. Fewel (1943) 23 Cal.2d 431, 438; Moon v. Moon (1944) 62 Cal.App.2d 185, 188; Estate of Fraysher (1956) 47 C.2d 131, 135 [rule stated, but no error where admitted by consent or without objection]; People v. Dickinson (1976) 59 Cal.App.3d 314, 319.) Penal Code section 1538.5 makes no mention of affidavits or declarations, let alone mandating defense acquiescence of untested hearsay. Counsel’s declaration specifically challenged the facts underlying the justification. The court did not hold the prosecution to its burden of proof when it relied on the highway patrol officer’s report.’ In point of fact, Deputy Public Defender Forrar charged: “If the court were to take the police report as sufficient justification and notice to the defendant as to why the officers were allowed to proceed without a warrant, I believe the court would be in violation of Williams.” (RT 14:23-27.) According to the very roots of Anglo-Saxon 5 THE COURT: Why hasn’t it been pled by the People? I have a police report here that says that Mr. Gomez was driving the wrong way on a one-way street. He was then stopped, and after the stop, for reasons that are, as far as I know, undisputed, the officers proceeded to conduct a DUI field sobriety test, at which point, they, having completed those, they then took Mr. Gomez down to the station for a test. I’ve forgotten whether it was a blood or breath test. So, what is it that -- where is the failure of the People? (RT 6:21-28; 7:1.) 12 Appellant’s Opening Brief/Gomez, A/#CR 5818jurisprudence, proof includes the right of the accused to confront and cross-examine the accuser. (See U.S. Const., 6th Amend.) Accordingly, “[s]ection 1538.5 and Williams, supra, provide a defendant with the right to fully litigate the validity ofa search or seizure on the basis of evidence presented at a special hearing on a suppression motion if the defendant files an initial brief making a prima facie case. (Smith, supra, 95 Cal.App.4th at 302-303.) In this regard, Gomez’s Motion, Reply, and his counsel’s declarations plainly put the prosecutor on notice that there were material issues in dispute, thus entitling him to an evidentiary hearing. Appellant seeks the opportunity to confront his accusers and challenge the prosecution’s assertion that the initial traffic stop was valid under the Fourth Amendment; it is asked that this matter be remanded to the lower court for an evidentiary hearing. 13 Appellant’s Opening Brief/Gomez, A./#HCR 5818CONCLUSION The court must reverse this ruling because: 1) Gomez made his prima facie case when he moved to suppress evidence obtained in a warrantless search, thus satisfying the initial pleading burden under Penal Code section 1538.5 and People v. Williams, supra; 2) The trier of fact failed to hold the prosecution to its burden of proof that there was justification for the illegal seizure and search; and. 3) On the face of all the moving papers, Gomez demonstrated his right to a full evidentiary hearing. Based on the foregoing, it is essential that this court uphold appellant Gomez’s constitutional and due process rights by reversing the order of denial of the suppression motion and suppressing the evidence. Respectfully submitted KIMIKO BURTON Public Defender City and County of San Francisco RANDALL P. MARTIN Chief Attorney ALISA J. KIM Deputy Public Defender By: ALISA J7KIM Deputy Public Defender Attorney for ALDO GOMEZ 14 Appellant’s Opening Brief/Gomez, A/#CR 5818I, the undersigned say: PROOF OF SERVICE I am over eighteen years of age and not a party to the above action. My business address is 555 Seventh Street, San Francisco, California 94103. On 2.19 Executed on , 2002, I personally served the attached on the following parties: OFFICE OF THE DISTRICT ATTORNEY City and County of San Francisco LAURA ZUNINO Assistant District Attorney 850 Bryant Street San Francisco, CA 94103 Municipal Court of the City and County of San Francisco Hall of Justice, Room 201 850 Bryant Street San Francisco, CA 94103 ATTN: Hon. Judge Patrick J. Mahoney Municipal Court of the City and County of San Francisco Hall of Justice, Room 201 850 Bryant Street San Francisco, CA 94103 ATTN: Janet Gonzaga, Appeals Clerk I declare under penalty of perjury that the foregoing is true and correct. 50 , 2002 at Sap Francisco, California. * cle, me Ay. - re lise J. ley Appellant’s Opening Brief/Gomez, A./#CR 5818