People v. Cella

• Decision Date: 20 January 1981
• Docket Number: Cr. 11614
• Citation: 170 Cal.Rptr. 915,114 Cal.App.3d 905
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Louis J. CELLA, Jr., Defendant and Appellant.

Page 915

170 Cal.Rptr. 915

114 Cal.App.3d 905

The PEOPLE, Plaintiff and Respondent, v. Louis J. CELLA, Jr., Defendant and Appellant.

Cr. 11614.

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

Jan. 20, 1981.

As modified on Denial of Rehearing

Feb. 10, 1981.

Hearing Denied March 18, 1981.

Monroe & Riddet and Keith C. Monroe, Santa Ana, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Harley D. Mayfield and Lillian Lim Quon, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Associate Justice.

Louis J. Cella, Jr., appeals the judgment after pleading guilty to seven counts of grand theft (Pen.Code, §§ 484, 487) ¹ and three counts of presenting false claims (§ 72). The remaining 117 counts were dismissed. He challenges the denial of his motions to reopen the suppression, section 1538.5, proceedings and to dismiss pursuant to article IV, subdivision (e), of the Interstate Agreement on Detainers (§ 1389). We conclude the trial court correctly denied his motion to dismiss, but erred in depriving him a further hearing to permit a full and complete determination of the merits of his § 1538.5 motion. Accordingly, we reverse the judgment and remand to the trial court with directions.

Factual and procedural background ²

This is Cella's second appeal to this court. In his first appeal, taken after the trial court denied his motion to suppress evidence (§ 1538.5), we reversed the judgment (People v. Cella, 4 Crim. 8913, filed March 28, 1979) holding the original search and seizure on August 4, 1975, to be unlawful and remanded with directions to the trial court. The People's petition for hearing to the Supreme Court was denied on June 14, 1979,

without prejudice to appropriate further proceedings in the superior court on the question whether or not all or part of the evidence against defendant was tainted by the search of August 4, 1975. (P) Bird, C. J., Mosk, J., and Newman, J. do not agree with the order denying a hearing without prejudice."

On July 5, 1979, Cella's guilty plea was set aside and the indictment was reinstated. The next day, a telephonic abstract of the arrest warrant, issued on July 5, 1979, was sent to the Federal Correctional Institute at Lompoc, requesting Cella be held pursuant to the abstract and notification. On July 8, 1979, Cella mailed a request for trial pursuant to section 1381.5 to the trial court with a copy to the district attorney. The district attorney wrote the warden at the Federal Correctional Institute at Lompoc on July 19, 1979, inquiring whether or when Cella could be released for trial in accord with section 1381.5. On the next day, the trial judge wrote a letter to the district attorney acknowledging receipt of Cella's request on July 9, 1979, noting his own review of section 1381.5, and stating it was the People's responsibility to make prompt inquiry with the federal authorities so that a trial date could be fixed. Hearing nothing from the federal authorities, the People applied, and the trial court issued on September 13, 1979, a writ of habeas corpus ad prosequendum addressed to the warden of the Federal Correctional Institute at Lompoc commanding him to produce Cella before the trial court on September 27, 1979.

Cella appeared in court on September 27, 1979. Over defense objection, the trial court recalled the bench warrant of July 5, and released Cella on his own recognizance to be held in federal custody. Cella then waived his right to appearance at the pretrial proceedings and his statutory right for time of trial, therefore waiving his right to a speedy trial. A readiness conference was set for November 13, and the trial was scheduled for November 26, 1979. He was apparently then held in the Federal Metropolitan Correctional Center in San Diego until October 2, 1979, when he was returned to the federal facility at Lompoc.

On November 8, 1979, Cella filed a "Memorandum re Further Appropriate Proceedings And Notice Thereof" with the trial court with the intent of notifying all interested parties of his intent " to undertake further proceedings pursuant to Penal Code section 1538.5 relative to all searches and all seizures involved in this case other than that of August 4, 1975." On November 13, 1979, the trial court told Cella to notice a hearing on whether further suppression proceedings could be undertaken and suggested he move for a continuance of the trial date. Two days later, Cella filed the cited notice as well as his motion to suppress. On November 20, 1979, the court denied what had become Cella's motion to determine whether he would be permitted to make a motion to suppress evidence on the grounds the motion to suppress was not timely made and it had been once heard.

Cella's motion to dismiss the indictment pursuant to the Interstate Agreement on Detainers (the Agreement) was also denied. On November 30, 1979, Cella entered his plea and obtained a certificate of probable cause regarding the contested issues. (§ 1237.5.)

I

Cella claims he was never afforded a full and fair suppression hearing after his appeal in which the search and seizure of August 4, 1975, was found to be unlawful. He says the trial court was required to reopen proceedings to examine the legality of numerous other searches and seizures. ³

After this case was remanded to the trial court, defense counsel was understandably in an apparent quandary as to how he should proceed with his motion to suppress. He had always argued the illegal search and seizure of August 4, 1975 was the "keystone" search and had tainted all the other evidence seized in later searches. In his first appeal he limited his argument to this search and we only addressed the illegality of that search. In denying the petition for hearing, it appears a majority of the Supreme Court wished to furnish guidance on what should occur on remand, because its order expressly provided it was "without prejudice to appropriate further proceedings in the superior court on the question whether all or part of the evidence against defendant was tainted by the search of August 4, 1975." Thus Cella's memorandum of November 8, 1979, pertaining to " further proceedings pursuant to Penal Code section 1538.5 relative to all searches and all seizures involved in this case other than that of August 4, 1975," was a natural outgrowth of the rather unique procedural posture of this case following appellate review. At a hearing on November 13, 1979, he told the trial court he was seeking the resolution of the question of whether he was entitled to further suppression proceedings, which was ultimately denied on the grounds previously noted.

The enactment of section 1538.5 with its comprehensive and exclusive pretrial procedures to determine search and seizure issues was a legislative response to the unnecessary and costly expenditure of time and effort in allowing defendants to repeatedly challenge the legality of a search or seizure while reserving to the prosecution the right to obtain appellate review of an adverse decision. (See People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.) "(D)etermination of a 1538.5 motion at a special hearing in the superior court whether in the defendant's or in the People's favor deprives that court of jurisdiction to reconsider the matter unless the People, pursuant to subdivision (j), seek to reopen the matter at trial upon a showing of good cause." (Madril v. Superior Court (1975) 15 Cal.3d 73, 77-78, 123 Cal.Rptr. 465, 539 P.2d 33.) " 'Under (§ 1538.5) a defendant is entitled to make only one pretrial motion to suppress evidence in the superior court He is not entitled to a second hearing on the motion prior to trial.' " (Id., at p. 77, 123 Cal.Rptr. 465, 539 P.2d 33, quoting People v. Superior Court (Green), 10 Cal.App.3d 477, 481, 89 Cal.Rptr. 223.)

We must inquire whether Cella merely seeks to relitigate matters upon which the court has previously ruled or whether further hearing is essential to the full and complete hearing to which he is entitled, including his right to have the court rule on the legality of other searches and seizures which the court in light of its findings may have thought were unnecessary to rule upon. (People v. Brooks (1980) 26 Cal.3d 471, 480-481, 162 Cal.Rptr. 177, 605 P.2d 1306.) For example, a court may deem it appropriate for reasons of judicial economy to bifurcate a suppression hearing and in a brief hearing rule on only a single ground presented rather than conducting a lengthy hearing and ruling on several grounds, all of which but one become superfluous. Where such occurs and "defendant's motion (is granted) on the first ground presented, (but) is subsequently reversed on appeal, the reviewing court should remand to the trial court for disposition of the alternate grounds for suppression." (Id., at p. 483, 162 Cal.Rptr. 177, 605 P.2d 1306.) Under such circumstances the superior court does not lack jurisdiction to hear a second 1538.5 motion. (Moreno v. Superior Court (1978) 80 Cal.App.3d 932, 935, 146 Cal.Rptr. 35.) As will become obvious, where the court does not bifurcate or limit the issues to be decided in the suppression hearing, the interests of judicial economy are better served by making express findings on all the interrelated contentions in the event the dispositive or foundational trial court finding is reversed on appeal.

Here, after an extensive hearing, the trial court decided the August 4, 1975 search, the search allegedly underlying every other search in the case, measured up to constitutional standards. We held the court erred in that finding. (See People v. Cella, supra.) The People assert the trial court necessarily considered the taint of the August 4 search and in denying Cella's motion found the remaining searches and seizures were not the "fruit of the poisonous tree." This record, however, without...