Loverde v. Superior Court

• Decision Date: 27 November 1984
• Docket Number: No. G,G
• Citation: 208 Cal.Rptr. 134,162 Cal.App.3d 102
• Court: California Court of Appeals Court of Appeals
• Parties: Rita Frances LOVERDE and Peter Charles Mullikin, Petitioners, v. The SUPERIOR COURT of Orange County, Respondent, The PEOPLE of the State of California, Real Party in Interest. 001886.

Page 134

208 Cal.Rptr. 134

162 Cal.App.3d 102

Rita Frances LOVERDE and Peter Charles Mullikin, Petitioners, v. The SUPERIOR COURT of Orange County, Respondent The PEOPLE of the State of California, Real Party in Interest.

No. G 001886.

Court of Appeal, Fourth District, Division 3, California.

Nov. 27, 1984.

Stanley I Greenberg, Abby Besser Klein, Los Angeles, for petitioners.

No appearance for respondent.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, William W. Bedsworth, and Michael J. Pear, Deputy Dist. Attys., for real party in interest.

OPINION

WALLIN, Acting Presiding Justice.

Petitioners Loverde and Mullikin seek a writ of prohibition preventing the Orange County Superior Court from remanding their matter to municipal court to correct alleged errors in the preliminary examination (Pen.Code, § 995a, subd. (b)(1)). ¹ They also seek a writ of mandate to compel the Orange County Superior Court to set aside the information (Pen.Code, § 995). We stayed all proceedings to determine the propriety of remanding the matter for the magistrate to articulate her findings on the credibility of a certain witness.

I

Petitioners are charged by information with possession of cocaine (Health & Saf.Code, § 11350) and possession of cocaine for sale (Health & Saf.Code, § 11351). They were arrested after local police and FBI agents entered their home to arrest Mullikin on an unrelated federal arrest warrant. A motion to suppress evidence (Pen.Code, § 1538.5) was heard with the preliminary examination. Petitioners claimed the law enforcement agents violated the knock-notice requirements of Penal Code section 844 in entering the residence to arrest Mullikin. The evident factual dispute is whether the first FBI agent inadvertently stumbled through the doorway simultaneous with his oral identifying announcement or whether he unlawfully forced entry without waiting for a response from the inhabitants. The magistrate expressed concern with the method of entry but ruled the contraband found in the house was admissible under the doctrine of inevitable discovery. ² Petitioners moved to set aside the information, contending the entry was illegal, and the magistrate erred in concluding the doctrine of inevitable discovery precluded suppression.

At the Penal Code section 995 hearing the district attorney conceded the magistrate erred in justifying the search and seizure under the doctrine of inevitable discovery. Nevertheless, the district attorney argued the magistrate reached the correct result because the evidence supported a finding of substantial compliance with section 844 and any ambiguity in the magistrate's ruling on the claimed section 844 violation could be clarified by remanding the matter under section 995a, subdivision (b)(1). ³ The superior court expressed a desire to know whether the magistrate believed the FBI agent's version of events before ruling on the motion to set aside. Remand was ordered "requesting the magistrate below make a determination on credibility since the finding was never made."

II

As this court noted in Tharp v. People (1984) 154 Cal.App.3d 215, 201 Cal.Rptr. 131, trial courts have few guidelines in determining the appropriateness of a remand order under section 995a, subdivision (b)(1). ⁴ The statute requires a careful balancing on a case by case basis since a valid remand order avoids a dismissal under section 995.

When a defendant brings a motion to set aside an information because of errors in the preliminary examination, section 995a, subdivision (b)(1) allows a remand to correct those errors only if the superior court finds they are "minor errors of omission, ambiguity, or technical defect ...." Petitioners' motion claimed the magistrate erred in failing to suppress evidence. Petitioners did not claim the magistrate erroneously failed to make factual findings on the credibility of witnesses. Thus, petitioners did not claim an error of omission correctable on remand.

Finding no omission, the question remains whether petitioners' motion to set aside the information claims a minor error of ambiguity. The magistrate's reliance on the doctrine of inevitable discovery was legal error. The district attorney essentially concedes the magistrate found a violation of section 844 first and therefore applied the doctrine of inevitable discovery as another basis for admitting the contraband despite the illegal entry. Any claimed ambiguity lies in the magistrate's failure to articulate factual findings and legal reasoning in concluding the entry was illegal. That ambiguity, if any, goes to the very heart of the case and can hardly be characterized as minor. The superior court oversimplified the issue by suggesting a finding on the credibility of one witness will resolve any ambiguity in interpreting the magistrate's denial of the motion to suppress. A factual finding on the credibility of one witness sheds little light on the ultimate question of compliance with the knock-notice requirements of section 844. The significance of the issue can hardly be characterized as minor.

Finally, we doubt the ambiguity "can be expeditiously cured ..." as required by section 995a, subdivision (b)(1). The real ambiguity lies not in whether the magistrate believed the FBI agent, but how the magistrate would have ruled if she had not relied on inevitable discovery. The remand order is itself ambiguous in light of the superior court's statement the magistrate may rule on the credibility of any...