People v. Medina

• Decision Date: 20 January 1972
• Docket Number: Cr. 15916
• Citation: 99 Cal.Rptr. 630,492 P.2d 686,6 Cal.3d 484
• Court: California Supreme Court
• Parties: , 492 P.2d 686 The PEOPLE, Plaintiff and Respondent, v. Jenaro Soto MEDINA, Defendant and Appellant. In Bank

Page 630

99 Cal.Rptr. 630

6 Cal.3d 484, 492 P.2d 686

The PEOPLE, Plaintiff and Respondent, v. Jenaro Soto MEDINA, Defendant and Appellant.

Cr. 15916.

Supreme Court of California,

In Bank.

Jan. 20, 1972.

Howard E. Beckler, Hollywood, for defendant and appellant.

Richard S. Buckley, Public Defender, James L. McCormick and Dennis A. Fischer, Deputy Public Defenders, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and John R. Evans, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

An information charged defendant with unlawfully possessing heroin for sale. (Health & Saf.Code, § 11500.5.) At a special pretrial hearing he moved to suppress evidence on the ground that it was obtained by an unreasonable search without a warrant. (Pen.Code, § 1538.5.) The superior court denied his motion. He then filed a timely, formally sufficient petition for a writ of prohibition to review the superior court's ruling. The Court of Appeal summarily denied the petition by minute order without opinion and defendant's petition for hearing was denied by this court.

At defendant's ensuing trial the parties waived a jury and the superior court found him guilty of the charged offense. On this appeal from the judgment of conviction defendant again urges that the search was unreasonable. The Court of Appeal held that the denial without opinion of defendant's petition for a writ of prohibition was res judicata on that issue. We granted a hearing to resolve the conflict between that decision and People v. Werber (1971) 19 Cal.App.3d 598, 602 97 Cal.Rptr. 150 which holds that the denial without opinion of a defendant's pretrial petition for a writ under section 1538.5 is not a conclusive determination of the validity of the challenged search or seizure precluding further review of that issue on appeal from an ensuing judgment of conviction. We have concluded that the Werber holding is correct. Reviewing the merits of the issue, however, we have determined that the search was a reasonable incident of defendant's lawful arrest and affirm the judgment of conviction.

Section 1538.5 provides that the defendant may seek pretrial appellate court review of the superior court's order denying his motion to suppress evidence by petitioning for a writ of mandate or prohibition ¹ and that he 'may seek further review of the validity of a search or seizure on appeal from a conviction.' ² The Assembly Interim Committee Report on Search and Seizure which was before the Legislature in 1967 when it enacted the statute ³ and the history of the Senate bill which eventually became section 1538.5 ⁴ also evidence the legislative intent that the merits of search and seizure challenges raised by a defendant's unsuccessful petition for a pretrial writ may remain open for further review on appeal from an ensuing judgment of conviction.

In accord with the holding of People v. Werber, supra, 19 Cal.App.3d 598, 602, 97 Cal.Rptr. 150, 152, which gives effect to the plain statutory language that 'defendant may seek further review . . . on appeal,' are dicta of the California courts (People v. Krivda (1971) 5 Cal.3d 357, 362, 96 Cal.Rptr. 62, 486 P.2d 1262; People v. Dubose (1971) 17 Cal.App.3d 43, 47, 94 Cal.Rptr. 376; People v. Superior Court (Green 1970) 10 Cal.App.3d 477, 481, 89 Cal.Rptr. 223; Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 106, 68 Cal.Rptr. 530), the holding of Forsythe v. State of California (C.D.Cal.1969) 307 F.Supp. 67, 68, and the pre cis of section 1538.5 in Witkin, California Evidence (2d ed. 1969) (Supp.) p. 17). We disapprove any implications in Nerell v. Superior Court (1971) 20 Cal.App.3d 593, 597, 97 Cal.Rptr. 702; People v. Malich (1971) 15 Cal.App.3d 253, 265, footnote 4, 93 Cal.Rptr. 87, and People v. Vega (1970) 12 Cal.App.3d 970, 972, 91 Cal.Rptr. 167, that section 1538.5 evidences a legislative intent that a defendant who applies for pretrial writ review of a denial of his motion to suppress evidence alleged to be wrongfully obtained foregoes his right to 'seek further review of the validity of a search or seizure on appeal from a conviction.'

Important incidents of the right to appeal from a superior court's judgment are the right to present oral argument in the appellate court (see Pen.Code, § 1254; Cal. Rules of Court, rules 22, 30) and the right to a written opinion pursuant to the state constitutional requirement that 'Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.' (Cal.Const., art. VI, § 14.) ⁵ Prior to the enactment of section 1538.5 every defendant who made proper objection, during trial, to the admission of evidence on the ground that it was the product of an unreasonable search or seizure was assured of the opportunity to have the merits of his objection argued before the appellate court and decided by written opinion on an appeal from a judgment of conviction. Nothing in the language or history of section 1538.5 suggests that the Legislature contemplated that its enactment of new procedures for the presentation of search and seizure challenges in the superior court and review of the denial of those challenges in the appellate court could be construed to deny the defendant an opportunity for appellate argument and decision by written opinion of his Fourth Amendment contentions.

It is settled law that an appellate court's action denying without opinion a petition for a writ of mandate or prohibition is not the determination of a 'cause' requiring oral argument and a written opinion. Rather, such minute order denials are made in chambers in the absence of the parties. Only when the appellate court issues an alternative writ or order to show cause does the matter become a 'cause' which is placed on the court's calendar for argument and which must be decided 'in writing with reasons stated.' (Funeral Dir. Assn., etc. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104, 106, 136 P.2d 785.) If we were to accept the view that such a minute order denial of defendant's petition for a pretrial writ under section 1538.5 is a conclusive adjudication which precludes review of the merits of the search and seizure contention on appeal from a subsequent judgment of conviction, the appellate courts could in part evade the state constitutional requirement of written opinions. Moreover, the provision of section 1538.5 for pretrial writ review would become useless for no well-advised defendant would invoke that provision at the risk of losing the right to be heard at oral argument and to have the merits of his constitutional contention decided by a written opinion.

Nevertheless the People urge that the sole possible ground of the appellate court's denial of defendant's petition for prohibition was on the merits and that the determination against him is therefore conclusive under the doctrine of res judicata ⁶ or must be adhered to under the doctrine of the law of the case. ⁷ We recognize that the denial of defendant's petition for the writ could not have rested on any merely procedural defect. The petition met the requirements of the California Rules of Court (rule 56), it was timely filed (see Pen.Code, § 1538.5, subd. (i); Gomes v. Superior Court (1969) 272 Cal.App.2d 702, 704, 77 Cal.Rptr. 539), and it was accompanied by the requisite transcript of the proceedings at the special hearing. (See Pen.Code, § 1539; Thompson v. Superior Court, supra, 262 Cal.App.2d 98, 106, 68 Cal.Rptr. 530.)

However, we cannot accept the People's contention that the sole possible ground for denying defendant's petition for the writ was a determination against him on the merits. We have continued to recognize that the writs of mandate and prohibition are 'extraordinary' and 'prerogative' and that therefore their use for pretrial review may and in some circumstances should be confined to questions of first impression and general importance. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169, 84 Cal.Rptr. 718, 465 P.2d 854.) Petitions for writs under section 1538.5 may come within this principle of discretionary denial.

When the record of the pretrial hearing indicates that the defendant unsuccessfully moved to suppress several items of evidence, some of which appear to have been seized validly and others invalidly, an appellate court may deny the petition without opinion in anticipation that the People will not insist on using inadmissible evidence at trial. It may take the view that the use of relatively minor items of evidence will be harmless beyond a reasonable doubt, and it may consider that the picture of the entire case developed at trial will enable it to make a better informed appraisal of the harmless error problem on appeal from a judgment of conviction. Such appraisal on appeal may result in a determination favorable to the defendant even though on denial of the pretrial writ petition the appellate court was tentatively of the opinion that admission of apparently minor items of evidence would be harmless.

In light of the various considerations which may impel appellate justices to vote to deny a defendant's petition for a pretrial writ under section 1538.5 without opinion, we believe that giving such a minute order conclusive effect on an appeal from a subsequent judgment of conviction would amount to improper conjecture and surmise as to the theoretically possible mental processes of the justices. (Cf. Note (1945) 18 So.Cal.L.Rev. 287, 289.)

The foregoing considerations do not apply to invocation of the doctrine of the law of the case on an appeal from a judgment of conviction after an appellate court has denied a defendant's application for pretrial writ review under section 1538.5 by a written opinion which decides the merits of a search and seizure contention. (See People v. Werber, supra, 19 Cal.App.3d 598, 602, 97 Cal.Rptr. 150; ...