People v. Berumen, Cr. 15283

CourtCalifornia Court of Appeals
Writing for the CourtSTEPHENS; KAUS, P.J., and AISO
Citation81 Cal.Rptr. 757,1 Cal.App.3d 471
PartiesThe PEOPLE, Plaintiff and Respondent, v. Margaret M. BERUMEN, Defendant and Appellant.
Decision Date05 November 1969
Docket NumberCr. 15283

Page 757

81 Cal.Rptr. 757
1 Cal.App.3d 471
The PEOPLE, Plaintiff and Respondent,
v.
Margaret M. BERUMEN, Defendant and Appellant.
Cr. 15283.
Court of Appeal, Second District, Division 5, California.
Nov. 5, 1969.

Page 758

[1 Cal.App.3d 473] Lawrence M. Nagin, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

By information, defendant was charged with a violation of Health and Safety Code, section 11500 (possession of heroin). A prior conviction of the same offense was also alleged. Defendant pleaded not guilty and denied the prior conviction.

On October 24, 1967, outside the presence of prospective jurors, defendant admitted the prior conviction. The jury was then impaneled. Again outside the presence of the jury, defendant moved to suppress the evidence. Testimony was taken, and the motion was argued and denied. The case was then tried. The jury became hopelessly deadlocked, and a mistrial was declared.

On January 3, 1968, the case was again called for trial. Defendant was represented by the same private counsel as at the first trial. Prior to the calling of a jury panel, defendant moved to suppress the evidence, pursuant to Penal Code, section 1538.5. The court denied the motion without taking testimony, because it was not timely according to the provisions of the statute. Defendant's motion to dismiss the cause was denied. There is a dispute as to whether defendant then admitted the prior conviction.

After a jury trial, defendant was found guilty as charged. A motion for a new trial was denied. Defendant's motion to strike the prior conviction was denied without prejudice. Narcotic addiction proceedings were filed against defendant, and she was ordered committed to the California Rehabilitation Center.

Defendant raises three issues on her appeal from the order denying her motion for a new trial: (1) the conduct of her defense counsel and the trial court reduced defendant's trial to a sham and a farce; (2) to apply Penal Code, section 1538.5 in a case where the first trial was held before its enactment is to make it an unconstitutional Ex post facto law; (3) the trial court erred in finding that defendant had suffered a prior conviction under Health and Safety Code, section 11500.

On November 8, 1967, after the conclusion of the first trial and before [1 Cal.App.3d 474] the commencement of the second trial, Penal Code, section 1538.5 became law.

Page 759

Subsection (m) of section 1538.5 provides in part:

'The proceedings provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him.'

Therefore, when the trial court denied defendant's motion without taking testimony, she was precluded from raising the issues of probable cause for her arrest and the legality of the ensuing search. At the time of trial, she was limited to the defenses of lack of knowledge, and dominion and control. Defendant argues that her attorney had adequate opportunity to give timely notice pursuant to section 1538.5, and his failure to do so deprived her of the effective aid of counsel and reduced her trial to a sham and a farce. Defendant relies upon People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490, which states:

'It is counsel's duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant had not had the assistance to which he is entitled. (Citations.)'

In Ibarra, defendant's counsel failed to object to the introduction of evidence because he mistakenly...

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7 practice notes
  • People v. Kuhns, Cr. 14439
    • United States
    • California Court of Appeals
    • September 8, 1976
    ...745--748, 102 Cal.Rptr. 6 (change in period in which death must ensue to warrant prosecution for homicide); and People v. Berumen (1969) 1 Cal.App.3d 471, 475, 81 Cal.Rptr. 757 (limitation of time of notice of motion to suppress).) The foregoing precedents are not controlling. Section 3 of ......
  • Jackson, In re, No. C
    • United States
    • United States State Supreme Court (California)
    • August 8, 1985
    ...Cal.2d 848, 849-850, 151 P.2d 244); (12) a statute requiring 10 days' notice of a motion to suppress evidence (People v. Berumen (1969) 1 Cal.App.3d 471, 475, 81 Cal.Rptr. 757); and (13) a statute permitting reinstatement of a criminal complaint which had been dismissed before the statute b......
  • People v. McKenzie, Cr. 22615
    • United States
    • United States State Supreme Court (California)
    • September 8, 1983
    ...determinations. (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619; People v. Berumen (1969) 1 Cal.App.3d 471, 476, 81 Cal.Rptr. 757; ABA Standards, Defense Function, std. 4-5.2.) 9 A refusal to participate in formulating or conducting a defense is not ge......
  • People v. Bradford, Cr. 9367
    • United States
    • California Court of Appeals
    • November 14, 1972
    ...Cal.2d 130, 139--140, 48 Cal.Rptr. 879, 410 P.2d 383.) The situation here finds a close parallel to the case of People v. Berumen (1969) 1 Cal.App.3d 471, 81 Cal.Rptr. 757. In that case defendant claimed his counsel was ineffective because he had failed to make a timely section 1538.5 motio......
  • Request a trial to view additional results
7 cases
  • People v. Kuhns, Cr. 14439
    • United States
    • California Court of Appeals
    • September 8, 1976
    ...745--748, 102 Cal.Rptr. 6 (change in period in which death must ensue to warrant prosecution for homicide); and People v. Berumen (1969) 1 Cal.App.3d 471, 475, 81 Cal.Rptr. 757 (limitation of time of notice of motion to suppress).) The foregoing precedents are not controlling. Section 3 of ......
  • Jackson, In re, No. C
    • United States
    • United States State Supreme Court (California)
    • August 8, 1985
    ...Cal.2d 848, 849-850, 151 P.2d 244); (12) a statute requiring 10 days' notice of a motion to suppress evidence (People v. Berumen (1969) 1 Cal.App.3d 471, 475, 81 Cal.Rptr. 757); and (13) a statute permitting reinstatement of a criminal complaint which had been dismissed before the statute b......
  • People v. McKenzie, Cr. 22615
    • United States
    • United States State Supreme Court (California)
    • September 8, 1983
    ...determinations. (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619; People v. Berumen (1969) 1 Cal.App.3d 471, 476, 81 Cal.Rptr. 757; ABA Standards, Defense Function, std. 4-5.2.) 9 A refusal to participate in formulating or conducting a defense is not ge......
  • People v. Bradford, Cr. 9367
    • United States
    • California Court of Appeals
    • November 14, 1972
    ...Cal.2d 130, 139--140, 48 Cal.Rptr. 879, 410 P.2d 383.) The situation here finds a close parallel to the case of People v. Berumen (1969) 1 Cal.App.3d 471, 81 Cal.Rptr. 757. In that case defendant claimed his counsel was ineffective because he had failed to make a timely section 1538.5 motio......
  • Request a trial to view additional results

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