Filed 7/29/15 P. v. Heinrichs CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040401
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F24778)

         v.

NATHAN DAVID HEINRICHS,

         Defendant and Appellant.


         Defendant Nathan David Heinrichs pleaded no contest to one felony count of
maintaining a place to sell controlled substances (Health & Saf. Code, § 11366) after the
trial court denied his renewed motion to suppress evidence (Pen. Code, § 1538.5).1
         On appeal, Heinrichs argues the trial court erroneously denied his motion to
suppress. In addition, he claims the trial court erred by refusing to consider additional
evidence, consisting of the transcript of a police dispatch recording, as well as a transcript
of his interview with police at the scene of his arrest, which was not presented to the
magistrate in connection with his initial suppression motion. Heinrichs further contends
the prosecution failed to disclose this additional evidence prior to his initial suppression
motion in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Finally, Heinrichs
argues his trial counsel was ineffective for failing to timely obtain the transcripts in
question.
         We find no error and will affirm the judgment.
         1
             Unspecified statutory references are to the Penal Code.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       Because defendant’s initial motion to suppress evidence was brought at the
preliminary hearing, we summarize the facts adduced during that hearing. (See People v.
Moore (2006) 39 Cal.4th 168, 171; § 1538.5, subd. (i).)
       A.     The report of a fight leading to the detention and arrest of Heinrichs
       On May 12, 2013, Santa Cruz County Sheriff’s Deputy Anthony Gonzales2 was on
patrol in Watsonville. At approximately 12:22 a.m., he was dispatched to 110 Silliman
Road, a rural two-lane road which connects Highway 129 with another public road. A
caller had reported that a fight involving “G types,” or gang members, was about to break
out at the residence, with several individuals outside challenging other partygoers to a
fight. The caller said one of the people involved may have a gun. At some point,
dispatch advised Deputy Gonzales that some of the involved parties were African-
American males.
       Deputy Gonzales turned off Highway 129 on to Silliman Road. He thought it was
perhaps a half-mile from the turnoff to the reported address, with only one other
residence in between. As he turned on to Silliman Road, he shut off his lights and sirens
because there was a clear line of sight from the reported address to the highway and he
knew most people would scatter if they knew the police were coming. Deputy Gonzales
believed approximately five minutes elapsed between receiving the call from dispatch
and arriving at the address.
       As Deputy Gonzales drove towards the house, he could see people standing in the
front yard. He also saw a black Honda approaching him, driving away from the reported
address. Deputy Gonzales illuminated the interior of the Honda with his spotlight as it
approached and saw two young men inside. He did not recognize the driver, but

       2
        At the time of the preliminary hearing, Deputy Gonzales was employed as a
police officer in Clovis, California.


                                             2
recognized the passenger, Heinrichs. Deputy Gonzales had contacted Heinrichs three or
four times previously while on patrol and with the gang task force and knew that
Heinrichs was a “documented Northern criminal street gang member.” Because there
had been a report that gang members were involved in a fight, Deputy Gonzales pulled in
front of the Honda, forcing it to stop.
       Due to the mention of a gun, Deputy Gonzales and his partner, Deputy Nunez,
drew their weapons and ordered Heinrichs and the driver to put their hands up and touch
the ceiling of the Honda. They initially complied, but Heinrichs then dropped below the
dashboard for perhaps two seconds before coming up and placing his hands on the ceiling
again. When more officers arrived on the scene, Deputy Gonzales ordered Heinrichs and
the driver to exit the vehicle. As Heinrichs got out, he again bent down out of sight, but
then “popped back up again real fast.” He was handcuffed and placed in a police vehicle
without incident.
       As Deputy Gonzales approached the passenger side of the Honda, he saw a black
square underneath the car. The square turned out to be a digital scale in a leather case.
On the passenger side floorboard, Deputy Gonzales found a plastic baggie and a cell
phone. The baggie contained 20 clear gel capsules each of which were filled with a white
crystal substance which resembled methamphetamine.3 The back of the cell phone had
been removed and the battery taken out. When Deputy Gonzales put the battery back in,
he noted that there were gang members listed in the cell phone’s contacts.
       Heinrichs had an iPhone and $241 in cash on his person. After obtaining a search
warrant for the iPhone, Deputy Gonzales downloaded its contents. Five or six text
messages on the iPhone appeared to reference drug sales.



       3
      Deputy Gonzales testified the substance later tested presumptive positive for
methamphetamine with a total weight of 4.87 grams.


                                             3
       B.     Initial motion to suppress
       At the preliminary hearing, Heinrichs moved to suppress all evidence obtained in
connection with his warrantless search and arrest on the ground that Deputy Gonzales
had no basis for stopping or detaining him the morning of May 12, 2013. The magistrate
denied the motion finding there was sufficient cause for Deputy Gonzales to stop
Heinrichs and held Heinrichs to answer on the allegations set forth in the complaint.4
       C.     The information and the renewed motion to suppress
       On August 21, 2013, the People filed an information charging Heinrichs with one
felony count of possession of a controlled substance (methamphetamine) for sale (Health
& Saf. Code, § 11378). Heinrichs brought a renewed motion to suppress the evidence
pursuant to section 1538.5, subdivision (i), along with a motion to dismiss the
information pursuant to section 995. In connection with the renewed motion to suppress,
Heinrichs sought to submit supplemental evidence which had not been presented at the
preliminary hearing, consisting of the audio recording and transcript of the dispatch
communications with Deputy Gonzales.
       At the hearing on the motion to suppress, the trial court denied Heinrichs’ request
to consider the supplemental evidence on the ground the defense knew there was a
dispatch tape and recordings prior to the preliminary hearing and could reasonably have
obtained that evidence in time to present it at that hearing. The trial court also expressly
noted that even if it had considered the evidence in connection with the renewed motion,
it was “not persuaded that there’s anything there that changes what [the magistrate]
determined . . . at the preliminary hearing.” Accordingly, the trial court denied both the
renewed motion to suppress and the motion to dismiss the information.


       4
        The complaint, filed May 15, 2013, charged Heinrichs with one count of felony
possession of a controlled substance (methamphetamine) for sale (Health & Saf. Code, §
11378).


                                              4
       D.     Heinrichs’ change of plea and sentencing
       On November 21, 2013, pursuant to a plea agreement, Heinrichs pleaded no
contest to a felony count of maintaining a place to sell controlled substances (Health &
Saf. Code, § 11366).5 The trial court dismissed the felony possession charge (id., §
11378) and placed Heinrichs on formal probation for a period of three years, conditional
on him serving 180 days in county jail.6
       Heinrichs’ initial notice of appeal was filed November 22, 2013. He subsequently
filed an amended notice of appeal and request for certificate of probable cause which the
trial court issued on February 4, 2014.
II.    DISCUSSION
       A.     The suppression motion was properly denied
       Heinrichs argues the suppression motion should have been denied because Deputy
Gonzales had no reasonable suspicion that Heinrichs was involved in any criminal
activity. We disagree.
              1.     Standard of review and relevant Fourth Amendment principles
       Where a suppression motion is made before a magistrate judge in conjunction with
a preliminary hearing, the magistrate acts as the trier of fact. (People v. Laiwa (1983) 34
Cal.3d 711, 718 (Laiwa), superseded by statute on another ground as stated in People v.
Trujillo (1990) 217 Cal.App.3d 1219, 1223.) Where, as here, the matter is raised a
second time in the superior court on the basis of the preliminary hearing transcript, the
superior court is bound by the magistrate’s factual findings and must accept them so long
as they are supported by substantial evidence. (§ 1538.5, subd. (i); People v. Ramsey
(1988) 203 Cal.App.3d 671, 679.) In such circumstances, the superior court acts as a

       5
         This count was added to the information on the People’s motion at the November
21 plea hearing.
       6
         Heinrichs was also subjected to a variety of probation conditions and ordered to
pay various fines and fees, none of which he challenges on appeal.


                                             5
reviewing court. In performing this function, the court must respect the magistrate’s
ability “to judge credibility, resolve conflicts, weigh evidence and draw inferences . . . .”
It must also draw “all presumptions in favor of the magistrate’s factual” findings and
uphold “them if they are supported by substantial evidence.” (People v. Bishop (1993) 14
Cal.App.4th 203, 214.)
       On appeal from the superior court’s ruling, we are similarly bound by the
magistrate’s findings. (People v. Trujillo, supra, 217 Cal.App.3d at p. 1224.) This court
disregards the ruling of the superior court and directly reviews the decision of the
magistrate. Thus, we review the magistrate’s factual findings to determine whether they
are supported by substantial evidence, but independently review the magistrate’s
determination that the search did not violate the Fourth Amendment. (Laiwa, supra, 34
Cal.3d at p. 718.)
       The Fourth Amendment to the United States Constitution guarantees the right to
be free of unreasonable searches and seizures by law enforcement personnel. (People v.
Maury (2003) 30 Cal.4th 342, 384.) However, “an officer may, consistent with the
Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” (Illinois v. Wardlow (2000) 528 U.S.
119, 123.) “ ‘Although police officers may not arrest or search a suspect without
probable cause and an exception to the warrant requirement, they may temporarily detain
a suspect based only on a “reasonable suspicion” that the suspect has committed or is
about to commit a crime.’ ” (People v. Durazo (2004) 124 Cal.App.4th 728, 734.) In
evaluating a particular detention, the reviewing court must consider the “ ‘totality of the
circumstances--the whole picture’ . . . .” (Alabama v. White (1990) 496 U.S. 325, 330.)
              2.     Analysis
       Under the circumstances here, Deputy Gonzales’ detention of Heinrichs was
reasonable. As articulated by the magistrate, the pertinent facts were these: “[W]e have
12:22 in the morning. We have a rural area. We have one vehicle on the road coming

                                              6
from the general area where this occurred and we do have the description of a gang
member and Deputy . . . Gonzales indicated he recognized . . . Heinrichs and knows he’s
a documented Norteño gang member.” These findings were supported by substantial
evidence and, given the reports of gang members being involved in an altercation along
with the report that someone at the party mentioned having a firearm, this particular stop
did not violate the Fourth Amendment.
       B.     Refusal to consider additional evidence
       Heinrichs next argues the trial court erred in refusing to consider the additional
evidence, consisting of transcripts of both the dispatch recording and Deputy Gonzales’
interview with him at the time of his arrest, proffered at his renewed suppression hearing.
       Section 1538.5, subdivision (i) provides, in pertinent part: “If the motion was
made at the preliminary hearing, unless otherwise agreed to by all parties, evidence
presented at the special hearing shall be limited to the transcript of the preliminary
hearing and to evidence that could not reasonably have been presented at the preliminary
hearing, except that the people may recall witnesses who testified at the preliminary
hearing. If the people object to the presentation of evidence at the special hearing on the
grounds that evidence could reasonably have been presented at the preliminary hearing,
the defendant shall be entitled to an in camera hearing to determine that issue. The court
shall base its ruling on all evidence presented at the special hearing and on the transcript
of the preliminary hearing, and the findings of the magistrate shall be binding on the
court as to the evidence or property not affected by evidence presented at the special
hearing.”
       Whether evidence reasonably could have been presented at the preliminary
hearing is predominantly a factual question and its determination is reviewed under the
substantial evidence standard. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
284 [factual determinations reviewed for substantial evidence]; see also People v.
Velasco (2011) 194 Cal.App.4th 1258, 1262 [substantial evidence standard applies to the

                                              7
factual determination that the state acted in good or bad faith in failing to preserve
evidence].)
       The trial court denied the request to admit supplemental evidence as it “was
reasonably obtainable prior to the preliminary hearing[,] . . . [a]nd recognizing that
Deputy Gonzales was going to be the critical witness at the motion to suppress and at that
preliminary hearing, the dispatch tape and the tape-recorded interview . . . are matters
which the defense should have obtained and didn’t.”
       The trial court’s determination is supported by substantial evidence. Heinrichs’
initial suppression motion referenced the dispatch information and therefore his counsel
was certainly aware there was an exchange between Deputy Gonzales and dispatch
regarding the reports that were coming in about the potential fight. The trial court found
the dispatch information was reasonably obtainable prior to the preliminary hearing.
Deputy Gonzales was specifically cross-examined during the preliminary hearing about
the details of what was reported to him by dispatch as he responded to the scene. The
trial court did not err by denying Heinrichs’ motion to admit the additional evidence.
       C.     The additional evidence would not have altered the result
       However, regardless of whether the trial court erred in refusing to admit the
additional evidence, we agree with the trial court its admission would not have changed
the result.
       At the preliminary hearing, Deputy Gonzales testified he received information
“some of the involved parties may be African-American males.” According to the
dispatch transcript, the officers were told that the reporting party “advis[ed] it’s an
aggressive group of six males, possible G-types” waiting outside to fight. When asked
who mentioned the gun, dispatch responded, “possibly a black male adult wearing a dark
flannel . . . and they’re all black male adults.” Dispatch subsequently reported the
number of people involved had increased to perhaps 20 with people from inside the house
coming outside to “confront[] the G-types.”

                                              8
       This transcript does not, as Heinrichs suggests, materially impeach Deputy
Gonzales’ testimony. Although the reporting party initially said that the people outside
the house were “G-types” and “all black male[s]” who were challenging those inside the
house to come out and fight, dispatch subsequently advised that a number of people from
inside had gone outside to confront the challengers. Dispatch was not clear about
whether it had been apprised of the race or ethnicity of those other people, since that
information was not broadcast to Deputy Gonzales. At the time he was approaching the
address, Deputy Gonzales knew the following: (1) approximately six black males were
outside a house challenging two of the people inside the house to come out and fight; (2)
the black males were all “G-types”; (3) one of the black males mentioned a gun; and (4)
up to 14 people--whose race and ethnicity had not been made clear--had gone outside to
confront the six black males. Deputy Gonzales’ testimony that dispatch reported “some
of the involved parties may be African-American males” is not materially impeached by
the transcript. The race or ethnicity of those inside the house who responded to the
challenge made by the black males outside the house was never mentioned by the
reporting party. Since the report was that some black gang members were challenging
people inside a house to a fight and Deputy Gonzales subsequently saw Heinrichs, whom
he recognized as a “Northern” gang member or affiliate, leaving the scene, it was
reasonable for him to assume that Heinrichs may have been involved in the reported
incident.
       Heinrichs also suggests the dispatch transcript demonstrates Deputy Gonzales had
no reason to stop a vehicle leaving the scene of the incident because the reporting party
gave no descriptions of vehicles that may have belonged to any of the parties involved.
Given the rural location, it was doubtful that the 20 or so people involved all walked to
the address. Based on the time of the incident (early in the morning) and the location, it
was reasonable for Deputy Gonzales to think that the vehicle driving toward him on that
road was occupied by people who may be involved.

                                             9
       Finally, Heinrichs claims that the transcript of his interview in the field contradicts
Deputy Gonzales’ testimony that he recognized Heinrichs as a gang member. It does not.
       In the interview, Deputy Gonzales said, “I know you from your history, from the
past, um, and I’ve talked to you before. Uh, so I saw you leaving. Obviously, I don’t
know what your status is right now. Uh, if you’re active or inactive or whatever. Either
way, you know, we don’t take any chances with stuff like that. We take it very seriously
‘cause we don’t know if somebody had a gun.” At the preliminary hearing, Deputy
Gonzales testified he had contacted Heinrichs on “three or four [previous] occasions” and
recognized him as “a documented Northern criminal street gang member.” The fact that
Deputy Gonzales advised Heinrichs that he did not know whether he was currently an
active gang member does not invalidate his personal knowledge that Heinrichs was a
documented gang member with whom he had three or four prior contacts.
       In short, there is nothing in any of the additional evidence presented to the trial
court which would have discredited Deputy Gonzales’ testimony to such an extent that
the motion to suppress would have been granted.
       D.     There was no Brady violation
       Heinrichs contends the prosecution’s failure to provide the transcripts of the
dispatch recording and his interview with Deputy Gonzales prior to the preliminary
hearing was a violation of his constitutional due process rights under Brady. We
disagree.7
       The Due Process Clause of the federal Constitution requires that the prosecution
disclose to the defendant information that is both material and exculpatory. (Brady,
supra, 373 U.S. at p. 87.) “There are three components of a true Brady violation: The


       7
         The People contend Heinrichs’ no contest plea amounts to a waiver of his right
to bring a Brady claim. We need not decide this question since we find, on the merits, no
Brady violation occurred.


                                             10
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999)
527 U.S. 263, 281-282.) The Brady rule “encompasses evidence ‘known only to police
investigators and not to the prosecutor.’ [Citation.] In order to comply with Brady,
therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known
to the others acting on the government’s behalf in the case, including the police.’ ” (Id. at
pp. 280-281.)
       The People have a duty to disclose any favorable and material evidence even
without a request by the accused. (Brady, supra, 373 U.S. at p. 87; In re Sassounian
(1995) 9 Cal.4th 535, 543.) Evidence is “ ‘favorable’ ” under Brady “if it either helps the
defendant or hurts the prosecution, as by impeaching one of its witnesses.” (In re
Sassounian, supra, at p. 544.) Evidence is material, where there is “a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985) 473
U.S. 667, 682.)
       On appeal, the defendant has the burden to establish the elements of a Brady
violation. (Strickler v. Greene, supra, 527 U.S. at pp. 289, 291.) A court reviewing a
suspected Brady violation independently reviews the question of whether such a violation
has occurred but gives “great weight to any trial court findings of fact that are supported
by substantial evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)
       Before turning to the merits of Heinrichs’ claim, we first address the People’s
argument that Brady does not require the production of impeachment evidence to the
defense before the preliminary examination and hearing on the suppression motion. We
disagree with this conclusion.



                                             11
       “A defendant who has pleaded not guilty and will have a preliminary hearing
occupies a vastly different position than one who is considering waiving his or her
constitutional rights and admitting guilt pursuant to a preindictment plea offer.”
(Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 1086 (Bridgeforth).)
“Preliminary hearings . . . serve to protect both the liberty interest of the accused and the
judicial system’s and society’s interest in fairness and the expeditious dismissal of
groundless or unsupported charges, thereby avoiding a waste of scarce public resources.
Requiring prosecutorial disclosure of information that is both favorable to the defense
and material to the magistrate’s determination of ‘whether there exists probable cause to
believe that the defendant has committed a felony’ (§ 866, subd. (b)) provides a valuable
additional safeguard for these extremely important interests.” (Id. at p. 1087.)
       As Bridgeforth notes, however, the right to disclosure of information prior to the
preliminary examination is not without limitation. Rather, “the precise scope of a
defendant’s due process right to disclosure and the determination of whether that right
has been violated are necessarily tailored to the context and purpose of the preliminary
hearing. [Citations.] Accordingly, the standard of materiality is whether there is a
reasonable probability that disclosure of the exculpatory or impeaching evidence would
have altered the magistrate’s probable cause determination with respect to any charge or
allegation.” (Bridgeforth, supra, 214 Cal.App.4th at p. 1087.)
       The materials in question here would have been, as we concluded above,
insufficient to change the magistrate’s decision to deny Heinrichs’ suppression motion.
Neither the dispatch transcript nor the transcript of Heinrichs’ field interview contained
evidence which directly contradicted Deputy Gonzales’ testimony at the preliminary
hearing. There were reports that a number of black male gang members were standing
outside a house, challenging some of the occupants to come out and fight. One of the
black males mentioned a gun. A number of people, of unknown race or ethnicity, came
outside in response to that challenge. As Deputy Gonzales approached the reported

                                             12
address, located on a rural road with few homes, he observed a vehicle approaching and
recognized the passenger, Heinrichs, as a Northern gang member. Although the
additional evidence Heinrichs sought to introduce at his renewed suppression hearing
could be described as potentially impeaching, there is no reasonable probability that the
inclusion of that evidence at the initial suppression hearing would have resulted in the
magistrate granting the motion to suppress. Consequently, the People’s failure to provide
that evidence did not violate Brady.
       E.     There was no ineffective assistance of counsel
       Finally, Heinrichs contends his trial counsel was incompetent for failing to obtain
the dispatch tape and tape of his field interview with Deputy Gonzales prior to the
suppression hearing.
       “To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective
standard of reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058; see Strickland v.
Washington (1984) 466 U.S. 668, 687-696.)
       Our review of a claim of ineffective assistance of counsel is highly deferential; we
must make every effort to avoid the distorting effects of hindsight and to evaluate the
challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13
Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must
indulge a strong presumption that counsel’s acts were within the wide range of
reasonable professional assistance. (Strickland v. Washington, supra, at p. 689; People v.
Hart (1999) 20 Cal.4th 546.)
       As to the prejudice prong, “[t]he United States Supreme Court [has] explained that
this second prong of the Strickland test is not solely one of outcome determination.

                                             13
Instead, the question is ‘whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.’ ” (In re Harris (1993) 5 Cal.4th
813, 833.) A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not
simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank
(1997) 16 Cal.4th 1223, 1241.)
       As we have made clear above, the additional evidence which Heinrichs’ trial
counsel failed to obtain prior to the initial suppression hearing would not have changed
the result of that hearing. Accordingly, counsel’s failure was not prejudicial and thus
cannot support the claim that Heinrichs received constitutionally ineffective assistance of
counsel.
III.   DISPOSITION
       The judgment is affirmed.




                                            14
                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P. J.




             Elia, J.




People v. Heinrichs
H040401

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