P. v. Garrison

Filed 10/11/07 P. v. Garrison CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Eric Garrison appeals his jury conviction for possession of cocaine base. He argues his conviction must be reversed because the trial court declined to suppress evidence that officers discovered cocaine base among his belongings during an inventory search. We affirm.

PROCEDURAL BACKGROUND

Defendant was charged with possession of cocaine base for sale. He filed a Penal Code section 1538.5 motion to suppress the drugs found in plastic bags in his possession when he was arrested for urinating in public.^[1] The prosecution opposed. At the preliminary hearing, defense counsel initially withdrew the motion. But counsel almost immediately changed his mind, and the court allowed him to reinstate it.^[2] At defense counsels request, the People then stipulated that defendant had standing. Then defendants counsel stated: Im going to submit it on the papers at this time. The People stated they [were] also submitting pursuant to discussions. The court ruled from the bench: I have read the papers carefully. I have located the ordinance on which the People are relying, and the motion to suppress is denied.

Defendant was held to answer and subsequently filed a motion to set aside the information pursuant to section 995, arguing that dismissal was warranted because evidence of the offense was illegally obtained. The court denied the section 995 motion.

The jury found defendant not guilty of possession for sale of cocaine base, but guilty of the lesser included offense of simple possession. Defendant was placed on three years probation pursuant to Proposition 36 ( 1210 et seq.), and timely appealed.

Statement of Relevant Facts

This statement of the facts is taken in full from defendants section 995 motion that characterized the briefing on the motion to suppress in this way. Both the prosecution and the defense in their papers agreed as to the relevant facts: Essentially, San Francisco Police Officers believed they had seen Mr. Garrison urinating in public. They saw him pick up two bags and begin to walk away. They told him to stop. He did so. He put his bags down and walked over to the officers. They did a records check, and found a potential warrant. At that point, Mr. Garrison was placed under arrest. The officers retrieved Mr. Garrisons bags and placed them in the trunk of the patrol car. At the station, an inventory of Mr. Garrisons bags was performed, and an alleged 28 rocks of cocaine base were found.

DISCUSSION

Defendant argues that the motion to suppress should have been granted because the prosecution failed to produce evidence to justify the warrantless search and seizure. But the motion was submitted on the papers, and defendant made no objection to the courts consideration of the facts as characterized in those papers. In fact, as he states, both parties respective factual summaries in their papers were essentially the same.

Having submitted on the papers in the trial court, and having conceded that those papers agreed as to the relevant facts, defendant may not now change positions on appeal and seek reversal of his conviction on the ground that the prosecution offered no evidence in opposition to his motion to suppress.

It is true that the statements of fact in the various papers contained hearsay, but defendant made no objection to the courts consideration of any aspect of the moving papers or the prosecutions opposition. Absent any objection to these statements of fact, we will not reverse the judgment. (Evid. Code,  353.) Moreover, defendants challenge to the prosecutions evidentiary justification for the search in light of his submittal of the motion to suppress on the papers seems unfair. (See People v. Williams (1999) 20 Cal.4th 119, 131 [[d]efendants cannot . . . lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked]; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181-183 [a party may not intentionally assert an inconsistent position that impairs the integrity of the judicial process].)

Defendant also contends the search and seizure of his bags was unlawful because there is no showing the bags were on his person or within his immediate control at the time of his arrest. But the officers saw defendant carrying the bags and put them down when he walked toward the officers. Items within a persons control include those within normal extensions of the person, such as personal articles recently seen in a defendants possession and still in his immediate vicinity, even if not literally within his reach. (See People v. Belvin (1969) 275 Cal.App.2d 955, 958-959; see also People v. Bundesen (1980) 106 Cal.App.3d 508, 516; People v. Edwards (1971) 22 Cal.App.3d 598, 601-602.)^[3]

Defendant also argues the search of his bags was unjustified because the People failed to show the need to hold them for safekeeping. But as the trial court observed at the section 995 hearing, if the bags had been left on the public street, they could have been stolen and the police could have been faulted for leaving defendants property unsecured. Police have a duty to see that property of an arrestee is secure from possible theft. (See People v. Scigliano (1987) 196 Cal.App.3d 26, 30; cf. People v. Miller (1972) 7 Cal.3d 219, 222, 224 [police were required to honor the defendants stated desire that they leave his property undisturbed when he explicitly told them that he preferred to assume the risk of a burglary in response to their request to take the property into custody for safekeeping].)

We are also not persuaded by defendants argument that his conduct at the time of his arrest implicitly made it clear that he preferred to assume the risk of theft rather than permit the police to take his property.^[4] As defendant says: He put his bags down and walked over to the officers. They did a records check, and found a potential warrant. At that point, Mr. Garrison was placed under arrest. The officers retrieved Mr. Garrisons bags and placed them in the trunk of the patrol car. Nothing about Garrisons conduct reasonably conveys the message that he wanted the officers to leave his bags behind on the street.

Defendants final contention is that the People were required to show the search of his bags was conducted pursuant to a preexisting police policy to inventory arrestee property. But defendant never argued the necessity for such an inventory policy in the trial court, and we will not let him do so here for the first time. (See People v.Williams, supra, 20 Cal.4th at p. 136 [defendants who fail to give the prosecution sufficient notice of an alleged inadequacy in the asserted justification for a warrantless search or seizure may not raise the issue on appeal];^[5]cf. People v. Smith (2002) 95 Cal.App.4th 283, 287-288, 305 [trial court erred by denying the defendant an opportunity to fully litigate whether evidence was seized during a valid inventory search pursuant to a standardized police policy].)

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Horner, J.^*

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Counsel stated: I think I shouldnt do that [i.e. withdraw the motion to suppress] because I went to all the trouble of filing it, and the D.A. went to the trouble of responding.

^[3] Defendant argues his case is similar to People v. Ingham (1992) 5 Cal.App.4th 326. We disagree. Unlike the defendant there, he has not shown that he disassociated himself from his property when he was taken into custody.

^[4] In light of our decision we need not address the Peoples argument that the continuing authority of People v.Miller, supra, 7 Cal.3d 219, is questionable, in light of later decisions by the United States Supreme Court.

^[5] In Williams, the court concluded that the prosecution was placed on notice that it had to prove the existence of a policy to open closed containers during an inventory search, when the defendants trial court papers said police had no preexisting policy and cited relevant authority that such a policy was required. (People v. Williams, supra, 20 Cal.4th at pp. 136-137.)

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.