Peopel v. Schoennauer

• Decision Date: 05 March 1980
• Docket Number: Cr. 19324
• Citation: 103 Cal.App.3d 398,163 Cal.Rptr. 161
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Alan Jerome SCHOENNAUER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 161

163 Cal.Rptr. 161

103 Cal.App.3d 398

PEOPLE of the State of California, Plaintiff and Respondent, v. Alan Jerome SCHOENNAUER, Defendant and Appellant.

Cr. 19324.

Court of Appeal, First District, Division 4, California.

March 5, 1980.

George L. Schraer, Berkeley, by Court Appointment, for defendant and appellant.

George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CALDECOTT, Presiding Justice.

Alan Jerome Schoennauer appeals from a judgment of conviction, following a plea of guilty, of violation of Penal Code section 496 (receiving stolen property). We affirm the judgment.

Appellant moved, pursuant to Penal Code section 1538.5, subdivision (f), at the preliminary hearing, to suppress evidence seized from an automobile and from his apartment. The motion was denied, and he was held to answer. Appellant filed a motion to set aside the information pursuant to Penal Code section 995, and filed a motion to suppress evidence pursuant to Penal Code section 1538.5, subdivision (i). Both motions were denied. Appellant withdrew his plea of not guilty and entered a plea of guilty of violation of Penal Code section 496 (receiving stolen property).

At approximately 5:00 p. m., on February 10, 1978, Mark Uribes left his apartment in Fremont. Upon his return at approximately 1:00 a. m., the following day, he found the kitchen window broken and his television set, eight-track stereo receiver, two stereo speakers and a clock-radio missing.

Around 11:30 p. m., on February 10, 1978, appellant went to David Jefferson's apartment and asked David to drive him to Union City. Both appellant and David Jefferson live in the same apartment building as Mark Uribes. As they were leaving, appellant asked Jefferson to drive to the other side of the parking lot where two of appellant's friends, Clifton Dordan and Thomas Gregory, were standing with a television set, stereo receiver and a clock-radio. The television set and stereo receiver were put in the back seat of Jefferson's car, while the clock-radio was placed in the trunk. Jefferson then drove the three men to Union City and stopped the car on Depot Street in Union City. One of appellant's friends left the car.

At approximately 11:40 p. m., the same evening, Union City police officers Grand and Stevens were driving a marked patrol car when they noticed Jefferson's car parked on Depot Street with the interior lights on. When the officers passed the car again, the interior lights were off and the officers could see some persons inside the car. The officers made a u-turn and parked behind the car. Because it was late at night and the car was parked in a residential area which had been plagued during the preceding two months with several burglaries involving television sets, the officers wanted to ascertain whether the occupants of the car were residents of Union City and why they were parked at that location. As Officer Grand approached Jefferson's car, he noticed an electrical cord hanging from the closed trunk. As he got closer, he observed appellant sitting next to a television set in the back seat of the car and two other individuals in the front seat. Officer Grand asked all three individuals for identification. Jefferson produced his California driver's license which indicated that he lived in Fremont. Dordan, the front seat passenger, produced an identification card which showed his address to be in Hayward. Appellant was without identification, but told Officer Grand his name and address. Although appellant stated that he lived at the same address as Jefferson, the address he gave to Officer Grand conflicted with the address on Jefferson's driver's license. Appellant told Officer Grand that they were intending to visit an individual by the name of Orsetti who lived in the home directly in front of the car. Officer Stevens went to the home and learned that the occupants were not named Orsetti nor did they know anyone by that name.

Because of the conflicting information, Officer Grand asked the occupants to exit the car separately so that he could interview each one individually. Officer Grand received the following conflicting statements. Jefferson and appellant stated that the television set belonged to Dordan whereas Dordan denied ownership. Jefferson and appellant stated that they had picked up Dordan at an apartment building in Fremont whereas Dordan said that he was picked up in Union City while hitchhiking.

Jefferson stated that he owned the car and granted consent to search. Officer Grand entered the car and found alongside the television set, an AMFC eight-track player which appeared to have been pulled from a wall. Officer Grand was given keys to the trunk and found inside a clock-radio. All three occupants were placed under arrest.

Two days later, on February 12, 1978, appellant's apartment was searched pursuant to a search warrant issued to police officer Mike McCullen. Officer McCullen found and seized inter alia two stereo speakers.

I

Appellant specifically stated in his notice of appeal that he is appealing from the whole of the judgment and that the "appeal is based on the denial of Defendant's motion under section 1538.5 of the Penal Code, and is taken pursuant to section 1538.5(m) of the Penal Code and Rule 31(d) of the California Rules of Court." ¹ Appellant, however, challenges in his opening brief not only the propriety of the trial court's ruling on his section 1538.5 motion, but also the propriety of the denial of his section 995 motion.

Under the statutory scheme of sections 995 and 1538.5, appellant moved at the preliminary hearing to suppress the evidence pursuant to section 1538.5, subdivision (f). His motion was denied. He then moved in the superior court, pursuant to section 995, to set aside the information for lack of probable cause on the ground that the evidence is the product of an illegal search. Appellant simultaneously filed a motion in the superior court to suppress the evidence pursuant to section 1538.5, subdivision (i). After separate hearings, both motions were denied.

The procedures followed by the superior court in hearing a section 995 motion and a 1538.5 motion vary. Section 995 requires the superior court to determine, after review of the preliminary examination transcript, whether there was any substantial evidence to support the magistrate's ruling. (People v. Gephart (1979) 93 Cal.App.3d 989, 995-996, 156 Cal.Rptr. 489; People v. Sanchez (1972) 24 Cal.App.3d 664, 690-691, 101 Cal.Rptr. 193.) A section 1538.5 motion enables the accused to have a de novo hearing in the superior court and requires the court to independently weigh the evidence. (People v. Gephart, supra, 93 Cal.App.3d 989 at pp. 995-996, 156 Cal.Rptr. 489; People v. Sanchez, supra, 24 Cal.App.3d 664 at pp. 690-691, 101 Cal.Rptr. 193.)

Upon denial of one or both motions, the accused is entitled to appellate review under section 1538.5, subdivision (m). (People v. Gephart, supra, 93 Cal.App.3d 989 at p. 996, 156 Cal.Rptr. 489; People v. Lilienthal (1978) 22 Cal.3d 891, 897, 150 Cal.Rptr. 910, 587 P.2d 706.) Appellate review is still available even where the accused enters a plea of guilty after the denial of either motion. (People v. Lilienthal, supra, 22 Cal.3d 891 at p. 897, 150 Cal.Rptr. 910, 587 P.2d 706.)

It is challenged by the People that the disparate functions of the appellate court in reviewing the determination of both motions will lead to irreconcilable conflict. The People cite People v. Sanchez, supra, 24 Cal.App.3d 664, 690, footnote 15, 101 Cal.Rptr. 193, 211, in which the court states that ". . . (i)n reviewing on appeal the denial of a motion under Penal Code, section 995, it is the determination of the magistrate at the preliminary hearing that is reviewed. (Citation omitted.) In reviewing on appeal the denial of a renewed motion to suppress pursuant to Penal Code, section 1538.5 subdivision (i) it is the de novo determination of the superior court that is reviewed." There, the court found that although the motion to suppress pursuant to section 1538.5, subdivision (i) was correctly determined by the superior court, the magistrate erroneously ruled on the original motion to suppress. (Id., at pp. 690-692, 101 Cal.Rptr. 193.) The judgment was not reversed because the error was raised for the first time on appeal. The court noted that: ". . . having determined that the search warrant was valid, were we to reverse for errors and irregularities occurring in the original motion to suppress or the preliminary hearing we would be in the absurd posture of reversing for new proceedings to determine a question upon which our present decision would constitute the law of the case." (Id., at p. 691, 101 Cal.Rptr. at 211-212.)

The law offers an accused two pretrial avenues of challenging the admissibility of evidence allegedly obtained from an illegal search and seizure. Sections 1538.5, subdivision (m) provides that proceedings pursuant to sections 995 and 1538.5, as well as sections 1238 and 1466, are to be considered the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure. There is no reference in section 1538.5, subdivision (m) or any other section of the Penal Code that the determination of one motion precludes the determination of the other motion. "(T)he motion to suppress provided for by (section 1538.5, subdivision (m)) is an alternative to and not necessarily in lieu of the older procedure under section 995." (People v. Superior Court (1969) 276 Cal.App.2d 581, 584, 81 Cal.Rptr. 42, 44.)

If both motions may be presented during the trial court proceedings, then it necessarily follows that appellate review of the disposition of each motion is available. In People v. Superior Court (1971) 20...