P. v. Moore

Filed 1/9/07  P. v. Moore CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Patrick J. Morris, Linda M. Wilde, Kenneth R. Barr and Brian McCarville, Judges.  Reversed and remanded.

            Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, Frederick R. Millar, and Bradley Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

            Adrian Eugene Moore, defendant and appellant (hereafter defendant) appeals from the judgment entered after a jury found him guilty of possessing cocaine in violation of Health and Safety Code section 11350, subdivision (a).  Because that conviction was defendant's third strike, and the trial court denied his motion to strike one or more of his prior strike convictions, the trial court sentenced defendant to serve a term of 25 years to life in state prison.  We had reversed defendant's conviction based on our conclusion that the police had violated defendant's rights under the Fourth Amendment when they conducted the search that netted the drugs.  We based our reversal on People v. Sanders (2003) 31 Cal.4th 318 (Sanders), which held that police officers must know of the defendant's parole search condition to justify a warrantless search under that exception.  The trial court had denied defendant's Penal Code section 1538.5 motion to suppress the cocaine because defendant was on parole at the time of the search and subject to a search condition.  Because the Supreme Court decided Sanders after the suppression motion was heard, the prosecutor did not present evidence at the suppression hearing to show that the police knew of defendant's parole search condition at the time of the search.  The Supreme Court granted review and has reversed and remanded the case to this court with directions to remand the matter to the trial court for a new suppression hearing at which the prosecution may present evidence to justify the search under Sanders or on any alternate grounds contained in the original motion and opposition thereto.

            Because our reversal in this case is conditional, and depends on the outcome of the suppression motion, we must address the other issues defendant raised on appeal but which we did not address in our previous decision.

FACTUAL AND PROCEDURAL BACKGROUND

            San Bernardino City Police Officers Antillon and Brennan were on bike patrol in downtown San Bernardino at 12:35 p.m. on May 5, 1999, when they spotted defendant and a woman leaving an apartment.  Defendant had a beer in his right hand and the woman appeared to be looking at something in her hands.  As Officer Antillon headed across the street toward them, defendant and the woman stopped walking.  When the woman looked up and noticed the officer, she said something to defendant and then walked quickly back to the apartment complex.

Officer Antillon contacted defendant who immediately stated that he would throw away the beer he was holding.  Following an initial exchange during which defendant appeared to the officer to be very agitated and nervous, Officer Antillon noticed what appeared to be a black plastic bindle in defendant's left hand.  When defendant would not comply with Officer Antillon's directive to open his hand, a struggle ensued that eventually involved other officers who had arrived at the scene.  Ultimately, defendant put the object in his mouth and the police officers had him transported by ambulance to a hospital where defendant was sedated and the bindle was removed from his mouth.  The content of that bindle tested positive for cocaine.

Additional facts pertinent to the issues defendant raises in this appeal will be discussed, below.

DISCUSSION

1.

SUPPRESSION MOTION

            As noted above, defendant moved to suppress the cocaine on the ground that the police had obtained it in a search that violated his Fourth Amendment right to be free from unreasonable searches and seizures.  The trial court denied defendant's motion after the prosecution presented evidence to show defendant was on parole and subject to a search condition at the time of the search.  The Supreme Court held in Sanders, supra, that the police officers must know of the defendant's parole search condition to justify the search under that exception.  (Sanders, supra, 31 Cal.4th at p. 335.)  The prosecution did not present evidence on that issue at the suppression hearing, nor did the prosecution present evidence to establish any other exception to the search warrant requirement.  Because Sanders was decided while this appeal was pending, and therefore after the hearing on defendant's suppression motion, we will conditionally reverse the judgment and remand the matter to the trial court with directions to conduct a new hearing at which the prosecution may present evidence justifying the search under Sanders or under any alternate grounds contained in defendant's moving papers or the prosecutor's opposition thereto.  (People v. Moore (2006) 39 Cal.4th 168, 178.)

2.

DISCOVERY MOTION

            Defendant next contends that law enforcement officers improperly destroyed exculpatory evidence and therefore the trial court erred in denying defendant's motion to either dismiss the charge or impose other sanctions against the prosecution.  The evidence in question is a videotape from West Valley Detention Center that defendant contends would have shown how badly beaten and injured he was when he arrived at the jail after he was released from the hospital.  In a supplemental brief, defendant identifies two other items of evidence he contends the police should have retained – defendant's clothing and any â€