(Super. Ct. No. 09F00492)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A police officer stopped defendant Eddie Hilliard for a turn signal violation and searched him. After the officer found some heroin on defendant, defendant tried to elude the officer and scuffled with him. Later, another officer found a loaded handgun in defendant's impounded car, in a Mary Kay valise on the rear seat, which had been next to a female passenger who was on probation.
After the trial court denied defendant's motion to suppress the evidence, a jury convicted him of simple possession of heroin (Health & Saf. Code, § 11350, subd. (a))*fn1 and misdemeanor assault and battery (Pen. Code, §§ 240, 242, respectively),*fn2 but acquitted him of all the other charges he faced: felony and misdemeanor resisting an officer, and all charges involving the gun (four possession-based offenses).
Defendant's felony conviction for the heroin possession, together with two armed robbery convictions from 1981, landed him a three strikes sentence of 25 years to life in state prison.
As we shall explain, a recent decision, People v. Carmona (2011) 195 Cal.App.4th 1385 (Carmona), renders the vehicle stop illegal because defendant's turn did not affect any motorist. Furthermore, due process precludes instruction on the assault and battery offenses as uncharged, nonincluded offenses to the section 69 offense of resisting an officer. (People v. Birks (1998) 19 Cal.4th 108, 117-118, 128 (Birks).) The People agree with these conclusions, assuming we agree with Carmona, which we do.
Accordingly, we shall reverse defendant's convictions--i.e., heroin possession and misdemeanor assault and battery. Since the only evidence of the heroin possession resulted from the illegal vehicle stop, and the assault and battery offenses were legally unavailable here, these three offenses may not be retried and defendant must be released from custody.
We will now plunge straight into discussion of the two dispositive issues on appeal--whether the heroin possession conviction was based on an illegal car stop; and whether the misdemeanor assault and battery convictions were legally available offenses--detailing the facts as we go.
I. Defendant's Motion to Suppress the Evidence of Heroin Possession Should Have Been Granted Because the Vehicle Stop Was Illegal, and Defendant's Conviction for ...