Superior Court of Marin County, No. SC159187A, Paul M. Haakenson, Judge. (Marin County Super. Ct. No. SC159187A)
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
Cerina Venice Lazlo was placed on probation following her guilty plea to one count of burglary (Pen. Code, § 459)*fn1 and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). That probation was revoked after her subsequent arrest on new criminal charges. The evidence supporting that arrest was suppressed after hearing under section 1538.5, and the new charges dismissed, but was nevertheless used as a basis for the probation revocation. Lazlo argues that the order reinstating and modifying the terms of her probation must be reversed because section 1538.5, subdivision (d), prohibits reliance on previously suppressed evidence at the probation violation hearing. We disagree and affirm.
In February 2009, pursuant to a plea bargain, the trial court suspended imposition of sentence on the burglary and methamphetamine charges and placed Lazlo on probation for a term of five years. As a condition of her probation, she was required to "conduct [herself] in a law-abiding manner."
On August 27, 2010, Novato Police Department Sergeant Jennifer Welch and Officer Blake Dunbar entered a motel room in connection with a parole search directed at William Charleson. When they entered, they found a woman, later identified as Lazlo, sleeping in the bed.*fn2 After waking Lazlo, Welch and Dunbar identified themselves and asked if she had any identification. Lazlo pointed to a black purse on the floor, but did not say anything. Welch retrieved the purse and asked, "Is it in here?" Lazlo said nothing. Welch opened up a wallet from the purse and found a California driver's license with Lazlo's photo and the name "Tara Simon." When Welch ran the name, Tara Simon, through dispatch, Lazlo stated, "That's not me." Lazlo then gave her true name. Counterfeit bills, methamphetamine, and financial information belonging to third parties were discovered inside the motel room.
On August 31, 2010, a complaint, charging five new offenses, was filed against Lazlo. A petition for revocation of probation was also filed based on the new charges. On November 15, 2010, a first amended complaint was filed, which charged Lazlo with possession of a forged driver's license (§ 470b) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). At a preliminary hearing in January 2011, Superior Court Judge Paul Haakenson heard evidence in connection with Lazlo's motion to suppress the evidence obtained by search of her purse. At the conclusion of the preliminary hearing, Lazlo's motion to suppress was granted, and the charges against her were dismissed. With respect to possession of the forged driver's license, the court concluded that the People had failed to meet their burden to show that the search was legal as a search incident to arrest, pursuant to probation or parole waivers, or pursuant to Lazlo's consent. With respect to the possession of methamphetamine count, the court found insufficient evidence that Lazlo exercised dominion and control over the methamphetamine found in the room.
Thereafter, in February 2011, Lazlo filed a motion to dismiss the petition to revoke probation, which was also heard by Judge Haakenson. Lazlo argued that section 1538.5, subdivision (d), and People v. Zimmerman (1979) 100 Cal.App.3d 673 (Zimmerman) mandated suppression of the evidence at the probation revocation hearing because it had been ordered suppressed in her criminal case. The People opposed Lazlo's motion, arguing that the authority upon which she relied had been abrogated by "the truth-in-evidence" provisions of Proposition 8, which became effective in 1982. (Cal. Const., art. I, § 28, subd. (f), par. (2).) The court agreed and denied Lazlo's motion.
Declining to follow the authority relied on by Lazlo, the court explained, "none of the cases provide any post Proposition 8 authority that's binding on this Court. [¶] And the Court's view of the evidence in this case is that the suppression was based on . . . a[n] extremely minimal intrusion by the police officers. Reasonable minds could even differ profoundly as to whether or not that evidence should have been suppressed, but that's stated only for purposes of underscoring that the officers' conduct was certainly not egregious or offensive in any way, it did not shock the Court's conscience . . . and was simply . . . I think an error by the police in asking for identification, which they had the right to do, versus just looking for it, rather than have the suspect look for it."
After the parties submitted the matter on the evidence presented at Lazlo's preliminary hearing, the court found that Lazlo had violated her probation by possessing a forged driver's license. The court revoked and reinstated Lazlo's probation, on the condition that she have no contact with her co-defendants and "possess no identification of other people, possess no checks belonging to other individuals except in the course of her employment requirements." Lazlo was also ordered to serve 210 days in county jail, with credit for 210 days served. Lazlo filed a timely notice of appeal.*fn3
Lazlo insists that section 1538.5, subdivision (d), prohibited the trial court from relying on previously suppressed evidence at the probation violation hearing. "Where, as here, there is no factual dispute and the trial court's decision turns solely upon a question of law, the standard of review on appeal is de novo. [Citation.]" (Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 262.)
A. Search and Seizure Law Before Proposition 8
"Section 1538.5 governs motions to suppress evidence obtained as a result of a search or seizure." (People v. Williams (1999) 20 Cal.4th 119, 127.) Section 1538.5, subdivision (a), provides: "(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable. [¶] (B) The search or seizure with a warrant was unreasonable because any of the following apply: [¶] (i) The warrant is insufficient on its face. [¶] (ii) The property or evidence obtained is not that described in the warrant. [¶] (iii) There was not probable cause for the issuance of the warrant. [¶] (iv) The method of execution of the warrant violated federal or state constitutional standards. [¶] (v) There was any other violation of federal or state constitutional standards. [¶] (2) A motion pursuant to paragraph (1) shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted." Subdivision (d) of the statute which is at issue here, ...