People v. Rawlings

• Decision Date: 06 November 1974
• Docket Number: Cr. 25584
• Citation: 117 Cal.Rptr. 651,42 Cal.App.3d 952
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Albert RAWLINGS, t/n Dennis Chew, Defendant and Respondent.

Page 651

117 Cal.Rptr. 651

42 Cal.App.3d 952

The PEOPLE of the State of California, Plaintiff and Appellant, v. Albert RAWLINGS, t/n Dennis Chew, Defendant and Respondent.

Cr. 25584.

Court of Appeal, Second District, Division 2, California.

Nov. 6, 1974.

Rehearing Denied Nov. 27, 1974.

Hearing Denied Jan. 2, 1975.

Burt Pines, City Atty., by Gerry L. Ensley, Deputy City Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, Karen M. Berlie, Martin Stein, by Martin Stein, Deputy Public Defenders, for defendant and respondent.

COMPTON, Associate Justice.

Defendant was charged in a complaint filed in the Municipal Court of the Los Angeles Judicial District with violating Vehicle Code section 23102, subd. (a) (driving under the influence of intoxicating liquor) and Vehicle Code section 12500, subd. (a) (driving without a valid driver's license).

Prior to trial, defendant made a 'motion to suppress' the results of a gas chromatograph test which had been administered to determine the amount of alcohol in defendant's system. In connection with a hearing on the motion it was stipulated that the police officer who had administered the test had not been trained in accordance with the provisions of section 1221.4, subd. (c) and subd. (d) of Title 17, California Administrative Code, Section 5. The city attorney, however, offered to prove that the testing officer at the time of administering the test was acting under the direct supervision of an officer who had been so trained and that the test was correctly performed.

The offer of proof was rejected and the trial court ordered the evidence 'suppressed.' The city attorney then indicated that in his opinion the case could not go forward without the 'suppressed' evidence. After a colloquy with the court the city attorney stated, 'I would ask the court to dismiss the entire case, so we may appeal. . . . I am not going to dismiss it. If you do it on your own, we will appeal it.'

The court on its own motion ordered the case dismissed and indicated in its minute order that such dismissal was 'after refusal of the People to go forward.'

The People appealed to the superior court, appellate department, which court dismissed the appeal as being taken from a non-appealable order. We accepted certification.

The appeal here is from the order of dismissal, which appeal is permitted by the language of Penal Code section 1466 as follows:

'An appeal may be taken from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located, in the following cases.

'1. By the people: (a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy; . . .'

The trial court's ruling that the results of the test could not be admitted was in error.

Health and Safety Code section 436.52 requires the State Department of Health to adopt rules and regulations to govern the administering of breath tests for the purpose of determining blood-alcohol levels. Those regulations which are pertinent here are contained in Title 17, California Administrative Code, section 1221.4, which provides in part:

'(c) Analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects:

'(1) Theory of operation;

(2) Detailed procedure of operation;

(3) Practical experience;

(4) Precautionary check-list;

(5) Written and/or Practical examination.' (Emphasis added.)

The regulation clearly envisions training such as was apparently being performed in the instant case. More important, however, neither the regulation nor its parent statute refer to the admissibility into evidence of any tests which fail to follow the regulation. These regulations do not affect such admissibility. The law favors admissibility of relevant evidence. (Evid.Code, § 351.) Where a statute, such as this, does not specifically provide that evidence shall be excluded for failure to comply with said statute and there are no constitutional issues involved (and none are involved here) such evidence is not inadmissible. Statutory compliance or noncompliance merely goes to the weight of the evidence. (People v. Brannon,32 Cal.App.3d 971, 108 Cal.Rptr. 620; People v. Fite, 267 Cal.App.2d 685, 73 Cal.Rptr. 666; People v. Wren, 271 Cal.App.2d 788, 76 Cal.Rptr. 673; 56 Ops.Atty.Gen., p. 38.) (People v. Foulger, 26 Cal.App.3d Supp. 1, 103 Cal.Rptr. 156 is disapproved.)

The so-called 'order of suppression' was not within the purview of Penal Code section 1538.5 which provides for pre-trial suppression hearings dealing with the issue of search and seizure. Here there was no issue of search and seizure involved. The issue was not whether the officers could constitutionally administer the test but only the mechanical circumstances of its administration. Penal Code section 1538.5 does not provide an omnibus procedure for the pre-trial determination of rulings on evidentiary questions generally. (People v. Morrow, 276 Cal.App.2d 700, 81 Cal.Rptr. 201; also see People v. Superior Court (Smith) 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230.) Nor was the order pursuant to any other established procedure providing for pre-trial determination of questions of the admissibility of evidence.

In short, the motion and the order resulted in nothing more than an informal indication of how the judge would later rule on the question. The order was not binding on the judge or the parties. (Saidi-Tabatabai v. Superior Court, 253 Cal.App.2d 257, 61 Cal.Rptr. 510.)

The defendant had no right to unilaterally seek a pre-trial ruling on such a purely evidentiary question and the City Attorney was not obliged to participate. Nor was the defendant in any position to move for a dismissal of the action based upon the pre-trial ruling. (See Pen.Code, § 1385; People v. Dewberry, 40 Cal.App.3d 175, 114 Cal.Rptr. 815.) Absent an agreement by both parties to conduct such hearing pre-trial, the court even on its own motion could not have ruled on the matter and dismissed the action. (Cf People v. Hitch, Cal., 117 Cal.Rptr. 9, 527 P.2d 361, 1974.)

Penal Code section 1385 provides: 'The court may, either of its own motion or upon the application of the prosecuting attorney, and in Furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.' (Emphasis added.)

While the court has wide discretion under that section the very fact that the reasons for a dismissal must be set forth in the minutes indicates that the power is not absolute. (People v. Curtiss, 4 Cal.App.3d 123, 84 Cal.Rptr. 106; also see People v Shaffer, 182 Cal.App. 239, 5 Cal.Rptr. 844; Fick v. Board of Medical Examiners, 31 Cal.App.3d 247, 251, 107 Cal.Rptr. 260.)

In determining whether the dismissal should be set aside we look to the reasons for the order which were entered in the minutes. The minutes recite that the reason for the dismissal was the refusal of the People to go forward with the case. Clearly such a refusal provides good grounds for a court to dismiss a criminal proceeding. At the heart of this appeal is the reason why the People refused to go forward, i.e., the erroneous and legally ineffectual ruling of the trial court ordering the evidence suppressed. The question is whether the People, after participating in a pre-trial hearing on an anticipated evidentiary question were justified in refusing to proceed to trial thereby incuring a dismissal which on appeal will be set aside if the underlying evidentiary ruling proves to be wrong. Stated another way, on the state of the record was the trial judge in error in dismissing the case for the reasons stated?

It is clear that a true suppression order pursuant to Penal Code section 1538.5 followed by a dismissal can be reviewed on appeal under Penal Code section 1466. (Pen.Code § 1538.5(d) and (m).)

The defendant here and the appellate department in its opinion, relying on People v. Caserta, 14 Cal.App.3d 484, 92 Cal.Rptr. 382, attached considerable significance to the fact that the People in effect invited the dismissal by suggesting that the court dismiss the action because of the People's perceived inability to...