People v. Leighter

• Court: California Court of Appeals
• Writing for the Court: DUNN; KINGSLEY, Acting P.J., and IRWIN
• Citation: People v. Leighter, 15 Cal.App.3d 389, 93 Cal.Rptr. 136 (Cal. App. 1971)
• Decision Date: 18 February 1971
• Docket Number: Cr. 18741
• Parties: The PEOPLE, Plaintiff and Appellant, v. Norma Mae LEIGHTER et al., Defendants and Respondents.

Page 136

93 Cal.Rptr. 136

15 Cal.App.3d 389

The PEOPLE, Plaintiff and Appellant, v. Norma Mae LEIGHTER et al., Defendants and Respondents.

Cr. 18741.

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

Feb. 18, 1971.

Rehearing Denied March 1, 1971.

Hearing Denied April 29, 1971.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Daniel L. Lieberman, Deputy Dist. Atty., for plaintiff and appellant.

Harvey A. Schneider, Pasadena, under appointment by the Court of Appeal, for defendant and respondent Leighter.

William A. Bjornsen, Altadena, under appointment by the Court of Appeal, for defendant and respondent Korte.

DUNN, Associate Justice.

Two separate cases are involved in this appeal: People v. Norma Mae Leighter (Los Angeles Superior Court No. A545569) and People v. George Millard Korte (Los Angeles Superior Court No. A545570). Separate informations were filed charging each defendant, in Counts I and II, with possession on March 11, 1970, of seconal and of benzedrine, felonies committed in violation of Health & Saf.Code §§ 11910 and 11911. As to Korte, a third count charged him with possession of marijuana on that same date, a felony in violation of Health & Saf.Code § 11530.

Each defendant made a motion to suppress evidence under Pen.Code § 1538.5 and, by stipulation, these motions were heard together. On April 23, 1970 they were denied. On April 24th, the court set aside its order so that it could hear further argument and, on this reconsideration, granted the motions. Thereafter, the court dismissed each case in the interests of justice under Pen.Code § 1385.

This is an appeal by the People under Pen.Code § 1238, subd. 7, from the orders of dismissal. ¹

Los Angeles deputy sheriff Joseph D. Barrett was the sole witness testifying at the special hearing, conducted pursuant to Pen.Code § 1538.5(i). He testified that, on March 11, 1970, he received information from Mr. Reck who owned a residence at 2512 Strathmore in the Rosemead area. Reck lived in a house located at the rear. He reported that he looked through a window as he passed the front house and observed an unknown man give another unknown male an injection. Reck returned later and saw the same man counting white tablets.

Barrett, another deputy and Reck went to the house and Reck knocked on the door, which was opened by respondent Leighter. As the door opened, Barrett 'observed the strong odor of what appeared to be burning marijuana emitting from the interior of the location.' Barrett had considerable experience with such odor. He immediately entered the house intending to arrest the occupants for violation of Health & Saf.Code § 11556. ²

As he entered, Barrett saw an unconscious female 'lying flat on her back in the doorway between the living room and kitchen.' He went over to her, concluded that she needed medical care and directed another deputy to call an ambulance.

While standing in the living room, he saw a water pipe used for smoking marijuana or hashish resting on a TV set. The pipe emitted a strong odor of burning marijuana. He felt the pipe's bowl and noted it was warm to the touch. It contained some burned matter and some unburned substance resembling marijuana.

There were four persons in the house. These were respondents George Korte and Norma Leighter, Jerry Stephens and the unconscious young woman, later identified as Diane Leighter. Korte was lying on a couch in the living room and appeared to be intoxicated. All were placed under arrest for violating Health & Saf.Code § 11530, possession of marijuana. (The reporter's transcript states the section as 11550, an obvious inadvertence since there is no such section number.)

After the ambulance removed Diane, and while the others were being handcuffed, Barrett observed a paper sack lying on a shelf. Protruding from it was a large plastic bag containing numerous red capsules resembling seconal. He went over to the sack and, on opening it further, found there were many small plastic bags inside, each containing red capsules, together with a bag of what apparently was marijuana. Also on the self was a half-open leather pouch. Protruding through the opening he saw a clear plastic vial holding many double-scored white tablets resembling benzedrine. He opened the pouch and inside were 400 tablets contained in three vials, together with twenty additional red capsules.

It was stipulated that respondent Leighter, after her arrest, was searched by a female deputy sheriff at the station house and was found to possess 173 white double-scored tablets and nine red capsules. It was also stipulated the charges against her were based exclusively upon her possession of this contraband.

It was further stipulated the officers had no arrest or search warrant. The record does not disclose if any of the deputies were in uniform.

Appellant first contends the trial court was without jurisdiction to reconsider respondents' motions to suppress, for which reason the orders suppressing the evidence are invalid. We disagree.

Appellant relies upon People v. Superior Court, 10 Cal.App.3d 477, 89 Cal.Rptr. 223 (1970). In that case, defendants moved to suppress evidence. The motion was heard October 8, 1969 by Judge Schmidt. Six witnesses testified and the motion was then argued and denied. Defendants' petition to the Court of Appeal for a writ of prohibition was denied without opinion. Defendants thereafter moved to renew their motion and Judge Ettinger granted them a hearing which took place April 6, 1970. Substantially the same evidence was presented and this time the motion was granted. The prosecution then petitioned for and obtained a writ of mandamus annulling the trial court's order. Resting its opinion upon language in Pen.Code § 1538.5, the First Division of our district concluded that a defendant is entitled to only one pretrial motion to suppress evidence in the superior court, and the trial court had no basis for granting a review, by way of rehearing.

There are many factors distinguishing that case from our own. Some are: (1) there, the hearings took place months apart; (2) the second was a completely new hearing, but one at which identical evidence was offered and received; (3) the first order denying the motion to suppress was not set aside; rather, the second judge in essence reviewed it and overruled it by making a contrary order based upon the same evidence.

In our case, no new 'hearing' was conducted at which evidence, either identical or different, was presented. The trial judge seemingly decided only that he might have been hasty and perhaps mistaken in denying the motion and, on his own initiative, set his order aside so that he might hear further argument. As an In limine order relating only to the admissibility of evidence it had no finality, unless so provided by statute. The People voiced no objection to rearguing the matter, whereas in People v. Superior Court, Supra, the prosecution strenuously objected.

Penal Code § 1538.5(i) provides that after a special hearing in the superior court 'any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate * * *.' In our case no 'review' took place. (See, E.g.: In re Shattuck, 208 Cal. 6, 8--9, 279 P. 998 (1929); Ray v. Parker, 15 Cal.2d 275, 290, 101 P.2d 665 (1940).) No judge reviewed the action of the first judge to determine if he acted properly and within his authority. Instead, the first judge, on his own motion, reopened the proceedings before him in order that he could give it further thought. People v. O'Brien (1969) 71 Cal.2d 394, 402--403, 79 Cal.Rptr. 313, 456 P.2d 969 (2nd motion made at trial) is clearly distinguishable. In People v. Krivda, 12 Cal.App.3d 963, 91 Cal.Rptr. 219 (1970), cited by appellant in oral argument the facts not only are distinguishable but our Supreme Court has granted a hearing.

It is true there should be some finality to orders made on pretrial motions, and that a renewal of the same motion may be so burdensome and provoking that a court may refuse to consider it. (Witkin, Cal. Criminal Procedure (1963 ed.) 25, § 22; 2 Witkin, Cal. Procedure (1954 ed.) 1649, 'Proceedings Without Trial' § 12; Witkin, Cal. Procedure (1967 Supp.) 589--590, 'Proceedings Without Trial' § 12.) However, a court does have jurisdiction to reconsider an In limine motion, absent some statutory prohibition. Here, defendants did not seek a 'review'; Pen.Code § 1538.5 thus was not violated and the trial judge acted within his authority in entertaining further argument. It should be emphasized that, in reaching this conclusion, we do not approach the situation presented in People v. Superior Court, Supra, which is quite distinguishable, as herein indicated. There a second judge, acting in a pretrial hearing upon identical evidence, disagreed with a first judge's conclusions and attempted to overrule him. No such 'review' occurred here and we are not faced with that problem.

The People's Appeal vs. Leighter

The parties' argument on this appeal revolves around the validity of Leighter's arrest. They concern themselves with the applicability of Pen.Code § 844. ³ In so doing, they overlook one factor, namely, it was respondent Leighter who opened the door. When she did, and the officer smelled marijuana, he then had reasonable cause to arrest her. (Mann v. Superior Court, 3 Cal.3d 1, 7, 88 Cal.Rptr. 380, 472 P.2d 468 (1970); People v. Peterson, 9 Cal.App.3d 627, 633, 88 Cal.Rptr. 597 (1970); People v. Nichols, 1 Cal.App.3d 173, 81 Cal.Rptr. 481 (1969).) None of the contraband found in the house was charged against Leighter, but only the evidence found at the jailhouse search, following her arrest.

The fact the officer made no arrest until he stepped inside is of small consequence. No entry for the purpose of arresting Leighter was necessary. She was at the doorway...