People v. Paris

• Decision Date: 03 June 1975
• Docket Number: Cr. 12915
• Citation: 122 Cal.Rptr. 272,48 Cal.App.3d 766
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. William Richard PARIS and Virginia MacGregor, Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 272

122 Cal.Rptr. 272

48 Cal.App.3d 766

PEOPLE of the State of California, Plaintiff and Appellant, v. William Richard PARIS and Virginia MacGregor, Defendants and Respondents.

Cr. 12915.

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

June 3, 1975.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Linda Ludlow, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

W. O. Weissich, San Rafael, for defendant and respondent William Richard Paris.

Harold J. Truett, Public Defender, Buford L. Toney, Asst. Public Defender, San Rafael, for defendant and respondent Virginia MacGregor.

MOLINARI, Presiding Justice.

Defendants were charged with violating Health and Safety Code sections 11378, 11351, 11359 and 11350. ¹ Defendant Paris was also charged with violating Penal Code section 12020 (possession of a weapon, a sap). Defendants moved to suppress evidence obtained as a result of a search and seizure pursuant to Penal Code section 1538.5. The motions were granted. The People sought review of the suppression order by writ of mandate to the Court of Appeal. The petition was denied without opinion. Thereafter the superior court ordered the action against defendants dismissed pursuant to Penal Code section 1385 on the basis that the prosecution had no evidence other than that which was suppressed. The People filed an appeal from the order of dismissal. In her brief defendant MacGregor requested that the appeal of the People be dismissed under the authority of People v. Carrington, 40 Cal.App.3d 647, 115 Cal.Rptr. 294. Defendant Paris, by letter, requested an affirmance of the trial court's order of dismissal under the authority of Carrington.

Carrington holds that where the Court of Appeal denies by minute order the prosecution's petition for a writ contesting the trial court's grant of the motion to suppress evidence, such a denial constitutes review by 'writ or decision' within the meaning of Penal Code, section 1538.5, subdivision (j), and precludes further review. (40 Cal.App.3d 647, 649--650, 115 Cal.Rptr. 294.) ² Subdivision (j) of Penal Code section 1538.5 provides, in pertinent part, that 'If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanor case, it shall be binding upon them.'

The rationale of Carrington is that the legislative purpose underlying section 1538.5 was to reduce the unnecessary waste of judicial time and effort in the determination of search and seizure questions and that in keeping with this purpose it was the plain command of section 1538.5 that once the People obtain a decision from the appellate court either by appeal or writ they may not relitigate the lawfulness of the search in the trial court or on appeal. (40 Cal.App.3d at p. 650, 115 Cal.Rptr. 294.)

Carrington holds that the term 'decision' in subdivision (j) of section 1538.5 does not mean a decision expressed in a written opinion but is 'a determination arrived at after consideration' of the petition for a writ on the basis of the full record of the evidence presented at the hearing on the motion. (40 Cal.App.3d at p. 650, 115 Cal.Rptr. at p. 297.)

We note, however, that in People v. Medina, 6 Cal.3d 484, 99 Cal.Rptr. 630, 492 P.2d 686, the Supreme Court observed that petitions for writs under Penal Code section 1538.5 may come within the principle of discretionary denial and that, accordingly, it may not be contended that an appellate court's denial of such a petition without opinion was a determination on the merits even though it patently appears from the record that the denial of the writ could not have rested on any procedural defect. (At p. 491, 99 Cal.Rptr. 630, 492 P.2d 686.) Medina is cited in Carrington but recognition is not given to this observation.

In the present case the People's petition for a writ of mandate under section 1538.5 was denied without opinion. The record in that case, which we judicially notice, does not indicate whether the denial of the petition was on the merits or whether it was a descretionary denial. In the absence of an affirmative indication in the record that the petition was determined on the merits we may not conclude that it was so determined. Since under the state of the record it may also be concluded that the appellate court acted within the principle of discretionary denial, we may not hold that the determination against the People was conclusive under the doctrine of res judicata or was such that it must be adhered to under the doctrine of the law of the case.

In reaching this conclusion we point out that we are in accord with Carrington that the term 'decision' in subdivision (j) of section 1538.5 does not mean a decision expressed in a written opinion. A decision affirmatively indicating that the denial of the petition was on the merits satisfies the mandate of the statute.

In view of the foregoing conclusion we proceed to consider the question whether the affidavit presented by Sergeant Hinnenberg was sufficient to support the issuance of the search warrant. The affidavit states that the following information was given to him by Monty J. Martin: On July 16, 1973, at approximately 3 p.m., Martin went to a residence on Shady Lane in Ross to install a telephone. Martin had been a telephone installer for 4 and 1/2 years and a reserve police officer with the San Rafael Police Department for approximately 7 months. During the course of his reserve duties he attended a 40-hour basic police course conducted by the San Rafael Police Department. Two or three hours of the course were related to the identification and investigation of narcotics and marijuana cases. During the class Martin was shown marijuana in all stages of growth and processing and observed a 'brick' of marijuana, which was described to him as a common form of packaging marijuana in one kilo packages. Martin was also shown how a kilo is commonly packaged for ordinary street marketing.

Martin entered the premises with the permission of the female occupants. In an effort to locate where service wires entered the building, Martin went outside the building. He saw the lines entering from the side and from the rear. He went back inside to trace where the service lines entered. In the rear of the residence, Martin saw a door which was open about three feet. He pushed it open further in order to enter and hook up the lines. He saw a stack of objects on the floor of the room which to him looked like 'bricks of marijuana.' The bricks were about the same size as ordinary building bricks and were stacked about three high and three wide. They were wrapped in opaque green paper.

Martin closed the door to the room and finished his work installing the two new telephones and checking the two old telephones. At 4 p.m., about 15 minutes to 1/2 hour after Martin saw the 'bricks,' a white male adult entered the residence and talked to Martin briefly about the installation of the telephones. Martin, finishing his work in a bedroom, was reapproached by the adult male who told him not to enter any of the back rooms of the house. Martin understood this to mean the room in which he had seen the 'bricks.' At 4:15 p.m., Martin finished his work and left the residence. The work order was made out in the name of William Paris.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, a two-pronged test was set out as applicable to an affidavit based on an informant's hearsay statement. This test was reiterated in Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485. Under Aguilar and Skelton the two requirements to be met are: (1) The statement of the informer must be factual in nature rather than conclusionary, and it must indicate that the informer had personal knowledge of the facts related; and (2) the affidavit must contain some underlying factual information from which the issuing magistrate can reasonably conclude that the information supplied by the informant was credible or his information reliable. (Aguilar v. Texas, supra, 378 U.S. at pp. 114--115, 84 S.Ct. 1509; Skelton v. Superior Court,supra, 1 Cal.3d at p. 152, 81 Cal.Rptr. 613, 460 P.2d 485; People v. Hamilton, 71 Cal.2d 176, 180, 77 Cal.Rptr. 785, 454 P.2d 681.)

Before proceeding to apply the foregoing test to the instant case we observe that the state sustains its initial burden by virtue of the affidavit itself since 'A presumably reliable person has attested to the truth of the matters alleged in the affidavit and a magistrate has in the exercise of his impartial function determined that the affidavit was truthful and acted upon it.' (Theodor v. Superior Court, 8 Cal.3d 77, 101, 104 Cal.Rptr. 226, 243, 501 P.2d 234, 251.) When this initial burden has been met by the prosecution the burden of demonstrating the inaccuracy or falsity of the allegations in the affidavit for a search warrant must be carried by the defendant. (Theodor v. Superior Court, supra.) This rule is consonant with that which states that if the defendant attempts to quash a search warrant the burden rests on him. (Theodor v. Superior Court, supra; People v. Wilson, 256 Cal.App.2d 411, 417, 64 Cal.Rptr. 172.) Once the defendant demonstrates that the affidavit contains error the burden then shifts back to the prosecution to show that the inaccuracies were included as the result of misapprehensions. (Theodor v. Superior Court, supra.)

In the present case the initial burden imposed upon the state was satisfied by the affidavit of Sergeant Hinnenberg who, as a police officer, was presumed to be reliable. (See People v. Hill, 12 Cal.3d 731, 761, 117 Cal.Rptr. 393, 528 P.2d 1.) The burden then shifted to defendants to show that the affidavit contained inaccuracies. They did not, however, seek to controvert the allegations contained...