People v. Belknap, Cr. 12827

• Decision Date: 25 September 1974
• Docket Number: Cr. 12827
• Citation: 41 Cal.App.3d 1019,116 Cal.Rptr. 664
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Floyd Cody BELKNAP, Defendant and Respondent.

Page 664

116 Cal.Rptr. 664

41 Cal.App.3d 1019

PEOPLE of the State of California, Plaintiff and Appellant, v. Floyd Cody BELKNAP, Defendant and Respondent.

Cr. 12827.

Court of Appeal, First District, Division 1, California.

Sept. 25, 1974.

Hearing Denied Nov. 21, 1974.

D. Lowell Jensen, Dist. Atty., Wm. McKinstry, Deputy Dist. Atty., Oakland, for plaintiff and appellant.

Claude O. Allen, Oakland, for defendant and respondent.

SIMS, Associate Justice.

This case has been transferred to this court pursuant to rules 62 and 63, California Rules of Court, following certification by the appellate department of the superior court in Alameda County that review of its decision, which affirmed the action of a municipal court in dismissing a felony criminal complaint, was necessary to secure uniformity of decision and to settle an important question of law. The question certified, which was decided adversely to the prosecution by both the magistrate and the appellate department, is whether under the provisions of subdivision (j) of section 1538.5 ¹ a ruling at a preliminary hearing granting the defendant's motion to suppress evidence is binding on the People in subsequent proceedings charging the same two offenses, when the defendant was held to answer on one of the two offenses at the preliminary hearing, an information, subsequently dismissed, was filed charging that offense, and the People failed to request within 10 days after the preliminary hearing, a special hearing to relitigate de novo the validity of the search and seizure. ²

Preliminarily it is determined that there is no right of appeal from the order of a magistrate dismissing a felony complaint, and that therefore neither the appellate department of the superior court nor this court has jurisdiction to entertain the People's purported appeal. Because of the special circumstances of this case, as reviewed below, it is deemed proper to address the merits of the controversy. On that score it is concluded that the People are bound by the order suppressing the evidence relating to the offense charged in the original information, but they are not bound by the order suppressing evidence relative to the offense which was dismissed by the magistrate. The appeal must be dismissed without prejudice, however, to the right of the People to take further action not inconsistent with the views expressed herein.

The settled statement on appeal, with interpolations by this court from the record noted in the margin, sets forth the following facts:

'On April 24, 1972, a criminal complaint was filed against (defendant) alleging violations of sections 11911 (possession of amphetamine for sale) and 11530 (possession of marijuana) of the Health and Safety Code. A preliminary hearing was held on May 8, 1972, in the Hayward Municipal Court . . ..

'At the conclusion of the preliminary hearing (defendant) was held to answer for violation of Section 11911 of the Health and Safety Code. He was not held to answer for violation of Section 11530 of the Health and Safety Code.

'Certain evidence was suppressed at the preliminary hearing, to wit, exhibits 3--A, 3--B and 4--A. These included a plastic bag (3--A); a plastic bag containing approximately fifteen white pills (3--B); and a baggie containing marijuana (4--A). ³

'An information was filed by the People in the Superior Court of the State of California, County of Alameda, on May 23, 1972, for violation of Section 11911 of the Health and Safety Code, and (defendant) was duly arraigned on said information in Superior Court and plead not guilty.

'On July 31, 1972, defense counsel, . . . filed a motion to dismiss the information under Section 995 of the Penal Code. On September 11, 1972, . . . said motion was denied. On the same date, the People filed a request for a hearing pursuant to penal code Section 1538.5(J), and (the court) denied the motion as it was not made within ten days of the granting of defendant's motion under 1538.5 of the Penal Code in the San Leandro-Hayward Municipal Court.

'In late September, 1972, the People moved the court to dismiss the information against (defendant) and (the) motion was granted on the grounds that the evidence suppressed in the Municipal Court was fatal (sic 'vital') to a successful prosecution. ⁴ On October 6, 1972, the People filed a new complaint against (defendant) in the San Leandro-Hayward Municipal Court charging him with violations of Sections 11911 and 11530 of the Health and Safety Code. These charges are based on the same facts which gave rise to the original complaint issued on April 24, 1972.

'On January 23, 1973, the defendant filed a motion to dismiss criminal proceedings in the San Leandro-Hayward Municipal Court, and on May 18, 1973, the defendant filed an amended motion to dismiss criminal proceedings. The motion was based on two grounds; 1) that the findings of the 1538.5 hearing at the first preliminary hearing are binding on the court which hears the second preliminary hearing based on the new complaint if there is no new evidence and if the defendant is held to answer and if there is no timely appeal by the People pursuant to 1538.5J((j)) of Penal Code; and 2) that the defendant has been denied his right to a speedy trial although he has waived time during the entire course of the original proceedings.

'On June 6, 1973, defendant's motion to dismiss . . . was granted . . ..'

I

On June 7, 1973, the People filed their notice of appeal from the order dismissing the complaint. The settled statement recites, 'Pursuant to rule 184B of the California Rules of Court, the ground for this appeal is that the court exceeded its jurisdiction in dismissing the new complaint.' Penal Code Section 1466 provides in part as follows: 'An appeal may be taken from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located, in the following cases. ( ) 1. By the people: ( ) (a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy; . . .' Nevertheless, it is questionable whether the dismissal of a felony complaint is an order which gives rise to a right to appeal to the appellate department of the superior court. (See People v. Uhlemann (1973) 9 Cal.3d 662, 668, fn. 5, and dissenting opinion at p. 670, 108 Cal.Rptr. 657, 511 P.2d 609. Cf. opinion prior to rehearing (1972) 8 Cal.3d 393, 105 Cal.Rptr. 21, 28, 503 P.2d 277, 284.) ⁵

It is established that no appeal will lie from the order of a magistrate dismissing a felony complaint following the granting of a motion to suppress evidence under the provisions of section 1538.5 of the Penal Code. In Cash v. Superior Court (1973) 35 Cal.App.3d 226, 110 Cal.Rptr. 612, the court noted, 'Giving the superior court appellate jurisdiction over a magistrate's ruling on a suppression motion would promote meaningless appeals. To illustrate, if the appellate department should affirm the magistrate's suppression order the People nonetheless have the statutory right to refile or seek an indictment, thus, in effect, nullifying the decision of the appellate department. On the other hand, if the appellate department reverses the magistrate's order, and the defendant is held to answer, as in the case at bench, he is entitled to renew his motion at a special hearing in the superior court. (Pen.Code § 1538.5, subd. (i).) If such a motion is made the decision of the appellate department again has effectively been annulled due to the fact that the defendant has a right to litigate the validity of the search and seizure de novo (an independent weighing of the credibility of witnesses and drawing of inferences) on the basis of evidence presented at the special hearing; neither the parties nor the judge are bound by the prior appellate decision.' (35 Cal.App.3d at p. 230, fn. omitted, 110 Cal.Rptr. at p. 615. See also People v. Randall (1973) 35 Cal.App.3d 972, 976--977, 111 Cal.Rptr. 590 (hg. in S.Ct. den. Feb. 7, 1974).)

In this case is dismissing the second complaint the magistrate observed that to permit the district attorney to dismiss the original information and refile the charges so as to secure a second ruling on the admissibility of the evidence would circumvent the provisions of section 1538.5 which expressly provide for the manner in which such a ruling may be reviewed. (See § 1538.5, subd. (j), fn. 1 above.) It is suggested, therefore, that since the underlying purpose of the appeal is to secure a review of the original evidentiary ruling, the reasoning of Cash should apply, the appeal should have been dismissed, and this court should rule accordingly. The People, who raised the point, correctly observe that the issue here on appeal only collaterally involves the prior evidentiary ruling. The fundamental question is the interpretation of the statute. The People in appealing do not seek a review of the magistrate's original order in these proceedings, but merely a determination that it is not binding in a subsequent proceeding under the provisions of subdivision (j) of section 1538.5. Therefore, the rationale of Cash v. Superior Court, supra, is not controlling.

A more serious impediment to the entertainment of the appeal is the compelling reasoning found in People v. Randall, supra, that section 1466 of the Penal Code only authorizes an appeal from an inferior court in cases in which the inferior court, as distinguished from a magistrate, has jurisdiction to render a judgment. The court, in adopting the opinion of the appellate department of the superior court of Los Angeles County, pointed out that section 1466 'applies to appeals from any 'inferior court.' 'Inferior court' includes a municipal 'court' but not a municipal Judge when sitting as a magistrate.' (35 Cal.App.3d at p. 974, 111 Cal.Rptr. at p. 592.) The procedure for prosecution by...