P. v. Castellanos

Filed 7/5/07 P. v. Castellanos CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Oscar Castellanos (defendant) appeals his conviction and sentence. He claims that the trial court erred in denying his motion to suppress on the ground that it was untimely. He also contends that there was insufficient proof that a prior conviction qualified as a strike. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 28, 2003, officer Paul Siapno responded to a report of a person knocking on the door of another persons apartment. When Siapno arrived, he encountered defendant in the hallway. Defendant was jittery, profusely sweating and nervous. At times his conversation was incoherent.

Believing that defendant was possibly under the influence of a controlled substance, Siapno searched defendants pockets and found $1,826 in cash. Defendant told Siapno that he lived in another apartment in the building. Siapno entered defendants apartment and found a Tupperware container that contained 49.81 grams of methamphetamine. Defendant was arrested.

Siapno interviewed defendant after advising him of his rights. Defendant admitted that Siapno had found something Im not supposed to have. He also stated that he used the methamphetamine and does a little on the side, but did not admit that he was selling the drug.

Following his arrest, defendant was determined to be gravely disabled and was placed on a Welfare and Institutions Code section 5150 hold due to his delusional thinking and auditory hallucinations.[1]

On April 16, 2004, defendant was found incompetent to stand trial. On May 13, 2004, he was committed to Atascadero State Hospital. Competency was restored on July 27, 2004.

On November 30, 2004, an amended information was filed charging defendant with possession of methamphetamine for sale (Health & Saf. Code, 11378). The information also alleged that defendant had suffered two prior narcotics violations, had served two prior prison terms, and had a prior conviction for assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)).

The trial was continued numerous times. The case was initially set for trial on November 22, 2004. Defendant moved for a continuance and the matter was continued to November 30, 2004. After the amended information was filed, the trial date was re-set for February 14, 2005.

On February 14, 2005, the court appointed Dr. Alfred Fricke to conduct a mental status evaluation and the matter was continued until April 7, 2005, for the receipt of Dr. Frickes report.

On April 7, 2005, the case was continued until April 28, 2005.

On April 28, 2005, the case was continued until May 19, 2005, again for the receipt of Dr. Frickes report.

On May 16, 2005, the court issued an order appointing Dr. Marvin Firestone in place of Dr. Fricke. On June 21, 2005, the court set September 19, 2005 as the new trial date.

On September 14, 2005, defendant moved to continue the trial date. Defendants attorney, who had been substituted as new counsel on April 11, 2005, indicated that within 30 days he would file a motion to suppress that would be based on defendants lack of capacity to give a valid consent. The trial was then continued to December 12, 2005.

On December 2, 2005, defendant again filed a motion to continue the trial. Defendants counsel stated that he had retained Dr. George Wilkinson to provide an opinion concerning defendants capacity.[2] He further stated that the motion to suppress would be filed no later than December 23, 2005. The trial date was continued to March 13, 2006.

On March 6, 2006, defendant filed another motion to continue. Defendants counsel claimed Dr. Wilkinson was unable to complete his report because he had yet to receive psychiatric records from the mental health facility that defendant had been transferred to shortly after his arrest. Defendants counsel further stated that the motion would be filed no later than April 8, 2006. The trial was continued to April 17, 2006.

On April 5, 2006, defendant filed yet another motion to continue the trial. Defendants counsel stated that Dr. Wilkinson was still waiting for relevant psychiatric records. Counsel further stated: Because it is firmly believed that these are the last investigation steps which must be undertaken, declarant will venture to state that this should be the last motion to continue requested in this case. The trial was continued until May 22, 2006.

Predictably, on May 16, 2006, defendant filed another motion to continue. This time, defendants counsel stated that Dr. Wilkinson still needed to review the reports from Atascadero Hospital, where defendant had been committed after he was found incompetent to stand trial. Defense counsel stated with absolutely no reservation that this is the last motion to continue requested in this case. He further stated that the motion to suppress would be ready to file by June 10, 2006.

Defendants case was set for trial on June 26, 2006. On that date, he moved to suppress evidence pursuant to Penal Code section 1538.5.[3] His motion, which was filed that same day, had been served on opposing counsel on June 22, 2006. Defendants counsel explained that he was unable to file the motion earlier because he did not receive Dr. Wilkinsons report until June 20, 2006. The motion was denied without a hearing on the ground that it was untimely.

After the motion was denied, defendant waived his right to a jury trial and the case was tried by the court on the preliminary hearing transcript. The court found appellant guilty. Following a waiver of jury trial on the priors, the court found the priors to be true.

On August 15, 2006, the trial court sentenced defendant to state prison for the middle term of two years for the charged offense. This term was doubled to four years by reason of the prior strike. He also received a consecutive three-year term based on one of his prior narcotics convictions. His second narcotics conviction was struck in the interest of justice. This appeal followed.

DISCUSSION

I.Standard of Review

We review the trial courts denial of defendants late-filed motion to suppress under the abuse of discretion standard. (See People v. Superior Court (1971) 4 Cal.3d 605, 610.)

II. Defendant Failed to Satisfy His Statutory Burden to Bring the Motion to Suppress Prior to Trial

Defendant claims the court erred in denying his motion to suppress, arguing that he was entitled to bring his motion on the day of trial since he lacked the opportunity to make the motion until he received Dr. Wilkensons [sic] report a mere six days before the trial date. We reject this argument.

The time limits for bringing a motion to suppress for a felony offense are found in section 1538.5, subdivisions (h) and (i). Those sections provide, (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial. [] (i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.

Contrary to defendants contention, reported appellate decisions do not support his argument that he was entitled to make a last-minute suppression motion.

In People v. Burke (1974) 38 Cal.App.3d 708 [(Burke)], the defendant made a motion to suppress evidence after the jury was selected, but prior to opening statements. His counsel informed the court that there had been no opportunity to make the motion earlier because of delay in discovering the relevant facts. [Citation.] The trial court denied the motion because there had been ample time to make the motion prior to trial, noting that counsel had been representing the defendant for over two months. [Citation.] In affirming this determination, the appellate court noted, The procedural scheme established by [section 1538.5] displays a strong legislative preference for litigating prior to trial the legality of searches and seizures. [Citation.] Subdivision (h) of section 1538.5 allows a motion to suppress to be heard during a trial only if prior to the trial . . . opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, . . . [Citation.] No persuasive justification for the delay was presented. The court did not err in rejecting appellants motion. [Citation.] (People v. Frazier (2005) 128 Cal.App.4th 807, 828829.)

The California Supreme Court in People v. Martinez (1975) 14 Cal.3d 533, 537, recognized a due diligence limitation on the availability of a belated motion to suppress under section 1538.5, subdivision (h). The court held that a motion to suppress raised at trial was properly denied because it was based on information defense counsel could have obtained at any time simply by interviewing his client.

Defendants reliance on People v. Guzman (1975) 47 Cal.App.3d 380 is misplaced. In that case, the Court of Appeal reversed the trial courts denial of a section 1538.5 motion. The trial court held that the defendants motion was untimely because it could have been raised before trial. However, because the prosecution failed to disclose during discovery that it intended to introduce into evidence the items obtained during the search, the Court of Appeal found that the belated motion should have been heard. (Guzman, supra, at pp. 390392.)

Here, the issue of whether defendant lacked the mental capacity to consent to search was apparent well before trial. There was evidence as early as the preliminary hearing that defendant was at times incoherent during the search of his apartment and that he was rambling on about the CIA and the FBI. Moreover, proceedings to declare him incompetent to stand trial were initiated early in this matter. Thus, defense counsel had ample grounds for raising the issue of defendants mental capacity prior to trial.

Further, defendants trial counsel had been representing him for over a year prior to making his motion to suppress. From the outset of his representation, counsel was aware of the factual basis for filing the motion. This makes the rationale for denying the present motion even more compelling than in Burke, where counsel had only been appointed for two months.

We also do not find the fact that Dr. Wilkinsons final report was not completed earlier to be dispositive. Thus, we do not agree with the defendants statement that his counsel lacked the opportunity to make a 1538.5 motion prior to trial. Defendant himself could have offered evidence as to his state of mind at the time of the search, and other evidence was certainly available from sources other than Dr. Wilkinson.

Nor do we believe the standard of due diligence was met in this case, as evidenced by the many requested continuances and repeatedly broken assurances that the suppression motion would be timely filed. Under the Martinez limitation, his motion to suppress at trial was properly denied.

Additionally, we noted that under section 1538.5, subdivision (i), notice of a motion to suppress must be given to the People at least 10 days prior to the start of trial. In order to properly hear this motion, the court would have been forced to grant yet another continuance. Under the circumstances of this case, the court did not err in finding defendants motion to be untimely.[4]

III. The Trial Court Properly Found that Defendant Had a Prior Strike

Section 1170.12, subdivision (c), the Three Strikes law, provides for a doubled sentence when a defendant convicted of any felony has been previously convicted of a serious felony. Defendant claims the record in this case is insufficient to prove that his prior conviction under section 245, subdivision (a)(1), qualified as a strike. In particular, he contends that the evidence is insufficient to support the finding that he personally either used a deadly weapon or inflicted great bodily injury on the victim. He relies on the fact that there was a codefendant in the prior case and asserts that the record introduced in the present case does not clarify the role each defendant played in the commission of the prior offense.

Defendant was charged in 1992 with attempted murder involving the personal use of a deadly weapon. ( 664.) The case was disposed of by a plea agreement. The abstract of judgment identifies his conviction as assault with a deadly weapon under section 245, subdivision (a)(1).

The list of serious felonies under section 1192.7, subdivision (c) includes both specific, enumerated crimes and more generic descriptions of criminal conduct. Before the passage of Proposition 21 in 2000, section 245 was not among the crimes enumerated in section 1192.7, and a conviction under section 245 could qualify as a prior serious felony only if the defendant personally inflict[ed] great bodily injury on any person other than an accomplice, personally use[d] a firearm, or personally use[d] a dangerous or deadly weapon. [Citations.] Because a conviction under section 245, subdivision (a)(1) could result from aiding and abetting another in an assault committed with a deadly weapon, or from personally committing an assault by means which were likely to cause great bodily injury, but which did not involve the use of a weapon or actually result in great bodily injury, proof that the defendant suffered a conviction under section 245, subdivision (a)(1) was not itself enough to demonstrate the crime was a serious felony. (People v. Banuelos (2005) 130 Cal.App.4th 601, 604605.)

Proposition 21 added subdivision (c)(31) to section 1192.7s list of serious felonies: assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of section 245. . . . A conviction for assault with a deadly weapon under section 245, subdivision (a)(1) now qualifies as a serious felony whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. [Citation.] But the amendment did not change the status of an assault by means of force likely to produce great bodily injury, the other variant of section 245, subdivision (a)(1). Even under the amended law, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. (People v. Banuelos, supra, 130 Cal.App.4th 601, 605.)

In the present case, the abstract of judgment submitted to prove the nature of defendants prior section 245, subdivision (a)(1), conviction lists the offense as assault with a deadly weapon. The designation is not ambiguous because it does not give rise to the possibility that the conviction might instead have been for the use of force likely to lead to great bodily harm. Rather, the abstract of judgment can only be read to mean that the assault was with a deadly weapon. Accordingly, the abstract of judgment constituted substantial evidence that defendant was previously convicted of assault with a deadly weapon as described in section 1192.7, subdivision (c)(31).

Evidence Code section 664 provides: It is presumed that official duty has been regularly performed. That presumption applies to the duties of court clerks. (See In re Lopez (1970) 2 Cal.3d 141, 146 [presumption that preparing docket entry was regularly performed]; Smith v. Smith (1958) 157 Cal.App.2d 658, 662 [presumption that minutes of court are correct].)[5] Defendant had the opportunity to rebut this presumption by providing evidence that his prior conviction under section 245, subdivision (a)(1), was not for assault with a deadly weapon. He presented no such evidence.

Based on the foregoing, we find substantial evidence existed to support the courts determination that defendants prior conviction under section 245, subdivision (a)(1), was a serious felony conviction.

DISPOSITION

The judgment is affirmed.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

People v. Castellanos, A115310

[1] Welfare and Institutions Code section 5150 provides in part: When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

[2] Defendants counsel indicated at oral argument that Dr. Wilkinson was appointed by the court and was not retained by defendant. Our review of the record indicates that Dr. Wilkinson was, in fact, retained. The record on appeal does not contain a court order appointing Dr. Wilkinson.

[3] All subsequent statutory references are to the Penal Code unless specified otherwise.

[4] As the suppression motion was denied without a hearing, and therefore without the introduction of any relevant evidence, we decline to address defendants argument that he was prejudiced by the denial. We observe, however, that trial courts are not obliged to accept the testimony of the defendant concerning his recollection and mental state at the time he conversed with the officers, nor [are they] required to accept the opinion of defendants expert witnesses with respect to the defendants mental condition at a time they did not observe him. (People v. Gurley (1972) 23 Cal.App.3d 536, 550.)

[5] The fingerprint card also describes the conviction as PC 245(a)(1) ADW raising no ambiguity with respect to the crime committed. (See also People v. Ruiz (1999) 69 Cal.App.4th 1085, 1091 [ We know of no reasonable basis to believe that the Department of Corrections employee who made the notation [on the fingerprint card] had any information concerning the underlying conviction other than that revealed in the abstract of judgment ]; People v. Williams (1996) 50 Cal.App.4th 1405, 1413.)