People v. Krivda

• Decision Date: 12 July 1971
• Docket Number: Cr. 15295
• Citation: 96 Cal.Rptr. 62,5 Cal.3d 357,486 P.2d 1262
• Court: California Supreme Court
• Parties: , 486 P.2d 1262 The PEOPLE, Plaintiff and Appellant, v. Judith KRIVDA and Roger T. Minor, Defendants and Respondents. In Bank

Page 62

96 Cal.Rptr. 62

5 Cal.3d 357, 486 P.2d 1262

The PEOPLE, Plaintiff and Appellant, v. Judith KRIVDA and Roger T. Minor, Defendants and Respondents.

Cr. 15295.

Supreme Court of California,

In Bank.

July 12, 1971.

Rehearing Denied Aug. 16, 1971.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood and Daniel L. Lieberman, Deputy Dist. Attys., for plaintiff and appellant.

Sam Bubrick, Los Angeles, for defendants and respondents.

BURKE, Justice.

The question presented by this appeal is whether a householder who places contraband in trash barrels and subsequently places the barrels adjacent to the street for pickup by the rubbish collector may be deemed to have abandoned the trash at that location and to have forsaken any reasonable expectation of privacy with respect thereto.

The pertinent facts leading to defendants' arrest are as follows: On July 1, 1968, Officer Gates received a telephone call from an anonymous informant who told him that 'Roger,' 'Judy' and 'Frankie,' residing at 1901 Nolden, Los Angeles, were engaged in sex and narcotic activities and were injecting Judy's two children with methedrine. Thereafter Officers Gates and Marsden located the premises, a single family dwelling, observed two young female children in front, and ran a utility check which showed that Judy Krivda paid the utilities there. Investigation also showed that Edward Krivda, whose wife was named Judy, had previously been arrested for narcotic activity. About 11 a.m. on July 19, 1968, the officers returned to the address and saw several trash barrels in front on the parkway adjacent to the sidewalk; they also observed the refuse collectors approaching and stopped them about half a block west, identified themselves and requested them to empty the well of their trash truck and pick up the trash in the can in front of 1901 Nolden.

The officers watched the men empty the well of their truck, drive to the front of the premises and empty the trash barrels; on block north the officers examined the contents of the well and found five paper sacks containing miscellaneous marijuana debris and marijuana seeds. One sack also contained four to six partially burned marijuana cigarettes, an envelope bearing the words 'Edward Krivda, 1901 Nolden,' a white, lined piece of paper on which was a handwritten letter with the name 'Frankie' mentioned in it dated Saturday, 13th, signed by 'Al,' and a three by five card dated Wednesday, 6--26, bearing the names 'Roger' and 'Judy.' The officers took a position of vantage and watched the premises; they observed defendant Roger Minor come out of the house at that address, pick up the trash barrels and carry them to the front porch of the house. They then approached the premises, effected entry, discovered defendants in the residence and recovered additional marijuana and paraphernalia.

On September 18, 1968, defendants were charged by information with possession of marijuana (Health & Saf.Code, § 11530). Thereafter, trial was continued because of the pendency on appeal of People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, decided by this court on September 24, 1969. On October 24, 1969, the superior court heard and denied defendants' motion to suppress evidence (Pen.Code, § 1538.5). On December 12, when the case was called for trial setting, defendants moved to 'reopen' the ruling on their motion to suppress. The court granted the motion to reopen, took the matter under submission on the basis of the transcript and evidence previously admitted at the prior hearing, and granted the motion to suppress. Then, on its own motion, the court ordered the action dismissed (Pen.Code, § 1385). The People appeal from the order of dismissal (Pen.Code, § 1238, subd. 7).

We have concluded that the court had no jurisdiction to entertain defendants' renewed motion to suppress, once its order denying the prior motion had become final as to that court, since the sole and exclusive remedy prior to conviction to review the denial of a motion to suppress is by means of an extraordinary writ of mandate or prohibition pursuant to Penal Code section 1538.5, subdivision (i). However, we have also concluded that the People's appeal from the order of dismissal should be denied, since the evidence which was sought to be suppressed was obtained by means of an unlawful search and seizure and constitutes the only evidence sufficient to sustain a conviction against either defendant.

The People first contend that the trial court had no jurisdiction to entertain defendants' renewed motion to suppress. That contention finds support in the language of section 1538.5, subdivision (i), ¹ which permits the defendant to make a motion to suppress (or to renew a prior motion denied at the preliminary hearing) at a special de novo hearing in superior court prior to trial, and which further provides that 'After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his motion at the special hearing.'

As we pointed out in People v. Superior Court (Edmonds), 4 Cal.3d 605, 610, 94 Cal.Rptr. 250, 483 P.2d 1202, one of the purposes underlying the enactment of section 1538.5 was to reduce the unnecessary waste of judicial time and effort involved in rehearing and redetermining at various stages in a criminal proceeding the same search and seizure questions. Accordingly, in that case we reaffirmed the principle set forth in People v. O'Brien, 71 Cal.2d 394, 403, 79 Cal.Rptr. 313, 456 P.2d 969, that the superior court has no jurisdiction to entertain At trial a renewed motion to suppress previously denied at a special hearing in that court. By similar reasoning, we conclude that the superior court is without jurisdiction to entertain such a renewed motion prior to trial, following the expiration of the 30-day period within which to seek extraordinary relief. As stated in People v. Superior Court (Green), 10 Cal.App.3d 477, 480--481, 89 Cal.Rptr. 223, 225, 'Had the Legislature intended to allow before trial the trial court's review, by way of rehearing, of a ruling on a pretrial motion made in the trial court it would have so provided. Construction of section 1538.5 to permit such a rehearing would doubtless result in repeated and endless hearings on each of which the same search and seizure issue would be raised before successive judges until one granted the motion. This may or may not amount to forum shopping but such practice would fail to comport with justice, encourage trial delays impairing the right of both parties to a speedy trial and do violence to the original purpose of section 1538.5, Penal Code--to streamline our criminal court processes, cut down the number of times a defendant can raise the search and seizure issue prior to conviction and provide an orderly system for litigating the validity of a search and seizure. Under the statute a defendant is entitled to make only one pretrial motion to suppress evidence in the superior court and if it is denied his only remedy is, within thirty days, to seek a writ of mandate or prohibition from this court; if he is unsuccessful and the evidence sought to be suppressed is used against him resulting in conviction he may further pursue his remedy by appeal from the judgment upon which further review of the validity of the search or seizure may be had. (Citation.) He is not entitled to a second hearing on the motion prior to trial.'

Defendants point out that in the instant case, their renewed motion was presented in the form of a motion to 'reopen' to the same judge who had previously denied it. Defendants urge us to hold that under such circumstances the judge had jurisdiction to reconsider and correct his own prior ruling on defendants' motion to suppress. It is true that there are several cases which hold that a court has the inherent power to reconsider, and thereupon to modify, revoke or set aside, a prior order upon determining that its order was erroneous. (See People v. Eggers, 30 Cal.2d 676, 692, 185 P.2d 1; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 634, 150 P.2d 881; Harth v. Ten Eyck, 16 Cal.2d 829, 832--834, 108 P.2d 675; San Francisco Lathing, Inc. v. Superior Court, 271 Cal.App.2d 78, 81, 76 Cal.Rptr. 304; Big Bear Mun. Water Dist. v. Superior Court, 269 Cal.App.2d 919, 928, 75 Cal.Rptr. 580; 2 Witkin, Cal.Procedure, Proceedings Without Trial, § 12, p. 1649.) It has been suggested, however, that the foregoing rule is limited in its application to mere 'procedural' rulings which may be modified at any time before final judgment (see Greene v. Superior Court, 55 Cal.2d 403, 405, 10 Cal.Rptr. 817, 359 P.2d 249; City of San Diego v. Superior Court, 36 Cal.2d 483, 486, 224 P.2d 685), and is an exception to the general rule that judicial error which occurs in the rendition of orders or judgments which are the fault of judicial discretion, as opposed to clerical error or inadvertence, may not be corrected except by statutory procedure (see In re Candelario, 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729; Minardi v. Collopy, 49 Cal.2d 348, 352--353, 316 P.2d 952; Kay System Transit Lines v. Superior Court, 36 Cal.2d 184 191--196, 222 P.2d 867 (dis. op. of Traynor, J.)).

Without attempting to reconcile these various cases, ² or to determine whether motions to suppress may be characterized as 'procedural' only, ³ it seems apparent from the language of subdivision (i) of section 1538.5 that the Legislature, in order to reduce the time spent in relitigating search and seizure questions, intended that the court's order denying a motion to suppress should, in the absence of a timely request for extraordinary appellate relief, become final 30 days thereafter and not subject to further review until an appeal is taken...