Gomes v. Superior Court for Los Angeles County

• Decision Date: 09 May 1969
• Citation: 77 Cal.Rptr. 539,272 Cal.App.2d 702
• Parties: Carlos Robert GOMES, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Div. 34081.
• Court: California Court of Appeals Court of Appeals

Page 539

77 Cal.Rptr. 539

272 Cal.App.2d 702

Carlos Robert GOMES, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent PEOPLE of the State of California, Real Party in Interest.

Div. 34081.

Court of Appeal, Second District, Division 5, California.

May 9, 1969.

Ivan E. Lawrence, Sherman Oaks, for petitioner.

John D. Maharg, County Counsel, Jean Louise Webster, Deputy County Counsel, for respondent.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, Maurice H. Oppenheim, Deputy Dist. Atty., for real party in interest.

KAUS, Presiding Justice.

On June 20, 1968, petitioner's automobile was impounded by the police. It contained a suitcase. Pursuant to departmental policy the suitcase was taken to the police station. Officer Shoales looked inside the suitcase 'to ascertain any identification to book the property to an individual.' He found numerous pictures and 'personal identification; and on further search, further checking the suitcase' he found an unsealed while envelope which contained marijuana. ¹ Petitioner was arrested when he came to the police station to claim his automobile.

Eventually an information was filed in the respondent court accusing petitioner of a violation of section 11530 of the Health and Safety Code. On November 26, 1968, petitioner moved to suppress the marijuana charge under the provisions of section 1538.5 of the Penal Code. ² Officer Shoales testified. The motion was orally denied that day. The smooth minutes for that day's proceedings were, however, not entered until December 9, 1968.

On December 27, 1968, petitioner filed his petition for a writ of mandate or prohibition with this court. Because we thought that the legality of the seizure of the marijuana presented an important legal point, we issued an alternative writ. At the same time we notified counsel that there was a question whether the petition had been filed within the thirty day time limit provided by section 1538.5(i).

The last sentence of section 1538.5(i) reads as follows: '* * * After the special hearing is held in the superio 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.' ³ (Emphasis added.) Since December 26, 1968, was not a holiday (Code Civ.Proc. § 12a), the petition was filed one day late unless such late filing may be excused or the time did not start to run until the court's order was entered in the smooth minutes.

We have no doubt that a timely filing of the petition is jurisdictional. The same reasons which moved us to hold that a petition for a writ of prohibition under section 999a of the Penal Code must be filed within the time limit provided for in that section, apply to section 1538.5. (Guerin v. Superior Court for the County of Los Angeles, 269 Cal.App.2d ---, 75 Cal.Rptr. 923. ^* ) We cannot, therefore, excuse a late filing in the absence of any showing that the People are estopped in some fashion. (Cf. Slawinski v. Mocettini, 63 Cal.2d 70, 72--73, 45 Cal.Rptr. 15, 403 P.2d 143; People v. Martin, 60 Cal.2d 615, 617--619, 35 Cal.Rptr. 769, 387 P.2d 585; People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868.) ⁴

We have come to the conclusion that the time for the filing of the petition atarted to run when the court orally denied it. It is, of course, true that many civil cases have held that orders are ineffective until filed with the clerk and entered in the minutes. (Jablon v. Henneberger, 33 Cal.2d 773, 775, 205 P.2d 1; Brownell v. Superior Court of Yolo County, 157 Cal. 703, 109 P. 91.) Whether or not this rule is based upon a general principle or specific statutory language, ⁵ we are satisfied that it has no application here. There are at least two statutory and several practical reasons for this view.

Although most, if not all, orders made under section 1538.5 will be entered in the court's minutes, there is no statutory requirement for that practice. The Penal Code sets forth over a dozen matters which must be noted in the minutes, but a ruling on a 1538.5 motion is not one of them. ⁶ Further, the very statutory language of 1538.5(i)--'30 days after the denial of his motion at the special hearing'--indicates that the time starts to run when the oral pronouncement of denial is made.

The district attorney points to numerous practical difficulties which would result from a contrary holding. We notice them only briefly:

1. Section 1538.5(l) provides as follows: 'The trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of the State of California of the proceedings provided for in this section, Section 1238, or Section 1466 and, except upon stipulation of the parties, pending the time for the initiation of such proceedings. * * *' If the time starts to run when, on some future date, the smooth minutes are entered, the court would have no idea for how long it should stay the trial. ⁷

2. If the denial is not effective until the smooth minutes are entered, a granting of the defendant's motion to suppress could not take effect at any earlier time. This would cause manifest problems under section 1538.5(o), when read together with section 1538.5(l). Theoretically, at least, it might not be possible to determine, between the time of the oral grant of the defendant's motion and the time of the entry in the smooth minutes, whether or not 'the trial of a criminal case is set for a date which is less than 30 days from the granting of a defendant's motion at a special hearing.' (§ 1538.5(o).)

3. If a defendant's motion under section 1538.5 is granted and the case is then dismissed under section 1385, the defendant's release, to which he is entitled under section 1538.5(k), might be held up until the smooth minutes are prepared. As the district attorney points out: 'In effect the clerk would have sentenced the defendant to jail 'for the term prescribed by the delay inherent in completing the smooth minute entry.''

Defendant also claims that his time to file the petition in this court was extended one day by the provisions of section 1013 of the Code of Civil Procedure relating to service by mail. In People v. Slobodion, 30 Cal.2d 362, 367, 181 P.2d 868, it was held that section 1013 of the Code of Civil Procedure has no application to a notice of appeal. No reason appears for a different rule with respect to the filing of a petition for a writ. (See also People v. Martiz, 130 Cal.App.2d 602, 604, 279 P.2d 568.) ⁸

Cases such as Industrial Indem. Co. v. Ind. Acc. Com., 57 Cal.2d 123, 126, 17 Cal.Rptr. 821, 367 P.2d 413; Pesce v. Dept. Alcoholic Bev. Control, 51 Cal.2d 310, 333 P.2d 15; and Cal. Mut. Water Assn. v. Public Util. Com., 45 Cal.2d 152, 156--158, 287 P.2d 748, involved the interpretation of special statutes and are not applicable to this case. Neither of course are such cases as Laubisch v. Roberdo, 43 Cal.2d 702, 277 P.2d 9, which dealt with the application of section 12a of the Code of Civil Procedure before the passage of the 1951 amendment thereto, which amendment abolished the addition of holidays appointed by the President or by the Governor to any applicable time period.

Counsel for petitioner also adverts to the fact that the reporter's transcript for the section 1538.5 hearing bears the date of December 5, 1968, on its title page. This is an obvious clerical error. Both the smooth and the rough minutes prove--and indeed it is so alleged in the petition--that the hearing was had and the ruling was made on November 26. As a matter of fact the transcript covers both a morning and an afternoon session. The afternoon session, which consisted of argument only and at which there was extensive reference to the testimony previously given, is correctly designated as having taken place on November 26.

It is unfortunate that we cannot reach the merits of petitioner's claim. They appear substantial. On the other hand he may actually benefit from this decision. The district attorney concedes that petitioner's claim of an illegal search and seizure can be renewed at the trial. ⁹ The question will be whether after finding adequate identification of the owner of the suitcase, the officer could continue his 'search' for the purpose of inventorying its contents. Assuming that the officer will testify...