People v. Municipal Court (Ahnemann), S.F. 23150

• Decision Date: 21 October 1974
• Docket Number: S.F. 23150
• Citation: 12 Cal.3d 658,117 Cal.Rptr. 20,527 P.2d 372
• Court: California Supreme Court
• Parties: , 527 P.2d 372 The PEOPLE, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF MARIN COUNTY, Defendant and Respondent; Herbert AHNEMANN et al., Real Parties in Interest and Respondents. In Bank

Page 20

117 Cal.Rptr. 20

12 Cal.3d 658, 527 P.2d 372

The PEOPLE, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF MARIN COUNTY, Defendant and Respondent;

Herbert AHNEMANN et al., Real Parties in Interest and Respondents.

S.F. 23150.

Supreme Court of California,

In Bank.

Oct. 21, 1974.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Derald E. Granberg and Charles R. B. Kirk, Deputy Attys. Gen., for plaintiff and appellant.

No appearance for defendant and respondent.

Harold J. Truett, Public Defender, Larry L. Heon, Deputy Public Defender, and Michael B. Dufficy, San Rafael, for real parties in interest and respondents.

SULLIVAN, Justice.

The People appeal from a judgment of dismissal ¹ entered by the superior court upon an order sustaining without leave to amend the general demurrer of real parties in interest Herbert Ahnemann and others to the People's petition for writs of mandate and prohibition.

On various dates in 1970 and 1971 complaints were filed in respondent municipal court separately charging each of the real parties in interest (hereafter defendants) with driving under the influence of intoxicating liquor. (Veh.Code, § 23102, subd. (a).) Defendants moved ² for an order requiring the production of the test ampoules used in each breathalyzer test submitted to by each of them respectively, or, if the ampoules were not produced, suppressing the results of the test. At the hearing on the motion the People stipulated that the test ampoules had not been preserved and therefore could not be produced. After receiving expert testimony as to the potential value to defendants of test ampoules, assuming their existence and availability, the court concluded that there was a reasonable Possibility but not a reasonable Probability that the ampoules and their contents would be of value. Accordingly the municipal court ordered that in each case the defendant was entitled to the production of the test ampoules and their contents and that upon failure of the People to produce them, all evidence with respect to the breathalyzer test should be excluded.

The People then filed in the superior court, their petition seekign a writ of mandate or in the alternative a writ of prohibition directing the minicipal court to vacate its order and restraining further proceedings. The petition was dismissed without prejudice for failure to state a cause of action. Thereafter, the People filed the instant petition for writs of mandate and prohibition and the court issued alternative writs. Defendants filed a general demurrer which was sustained without leave to amend. The petition was dismissed. This appeal followed.

It is well settled that neither a writ of prohibition nor a writ of mandate will lie to resolve an issue as to the admissibility of evidence. (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 129--130, 74 Cal.Rptr. 294, 449 P.2d 230; Ballard v. Superior Court (1966) 64 Cal.2d 159, 164, 49 Cal.Rptr. 302, 410 P.2d 838; Van Halen v. Municipal court (1969) 3 Cal.App.3d 233, 238--239, 83 Cal.Rptr. 140; People v. Superior Court (1955) 137 Cal.App.2d 194, 195, 289 P.2d 813.) However, it is also settled that pretrial discovery orders in criminal cases may, in certain instances, be reviewed by prohibition or mandate. (Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 801, 91 Cal.Rptr. 594, 478 P.2d 26; Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 322, 85 Cal.Rptr. 129, 466 P.2d 673; Ballard v. Superior Court, Supra, 64 Cal.2d 159, 167--168, 49 Cal.Rptr. 302, 410 P.2d 838.)

Defendant's motion in the municipal court to compel production of the test ampoules or if they were not produced, to suppress results of the breathalyzer tests raised solely a question of admissibility of evidence once the People stipulated that the ampoules had been destroyed and could not be produced. From that point the municipal court was concerned solely with the question whether the People's inability to produce the ampoules required suppression of the results of the tests. As previously stated the court ordered that all evidence of the tests be excluded. ³ The People's contention that this order was merely a discovery order requiring them to produce the ampoules and their contents completely overlooks the fact that the court specifically recognized that the ampoules had been destroyed. It is clear to us that contrary to the People's claim, the court was not ordering the performance of an impossible act particularly in the light of its language that 'the defendant Is entitled to the production' (italics added) but that it was actually ordering the exclusion of the results of the breathalyzer tests as inadmissible evidence. Since as stated above, neither a writ of prohibition nor a writ of mandate will lie to review the municipal court's ruling on the admissibility of such...