People v. Superior Court

• Decision Date: 12 August 1970
• Citation: 10 Cal.App.3d 477,89 Cal.Rptr. 223
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Dale Catherine GREEN and Rex Andrew Ramsey, II, Real Parties in Interest. Civ. 36496.

Page 223

89 Cal.Rptr. 223

10 Cal.App.3d 477

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Dale Catherine GREEN and Rex Andrew Ramsey, II, Real Parties in Interest.

Civ. 36496.

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

Aug. 12, 1970.

Rehearing Denied Sept. 4, 1970.

Hearing Denied Oct. 9, 1970.

Evelle J. Younger, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Division, Harry B. Sondheim and Donald J. Kaplan, Deputy Dist. Attys., for petitioner.

Patterson, Weitzman & Alexander and Howard L. Weitzman and Joseph Giovanazzi, Los Angeles, for real parties in interest.

LILLIE, Associate Justice.

This matter is before us on the People's petition for writ of mandate directing respondent court to annul its order of April 6, 1970, granting defendants' motion under section 1538.5, Penal Code, and suppressing evidence in a pending criminal prosecution against defendants Green and Ramsey. We issued an alternative writ commanding respondent court to annul its order or to show cause why it had not done so. The order not having been annulled on the return day, the cause was heard and argued. We conclude that respondent court had no jurisdiction to rehear the motion under section 1538.5, Penal Code, prior to trial and that the writ should issue.

Defendants, charged with violations of sections 11530.5 and 11531, Health and Safety Code, moved under section 1538.5, Penal Code, to suppress certain evidence on the ground that it was recovered as the result of an illegal entry, search and seizure. The motion was heard on October 8, 1969, before Judge Howard H. Schmidt. At the outset Richard T. Sykes, who represented both defendants, advised the court that while there might be a possible conflict of interests between defendants at trial, 'there is no conflict through the 1538.5 hearing,' and that he had discussed the matter with both defendants. The judge concurred with counsel and at length explained to defendants the problem of possible conflict of interests arising out of a single representation so they could not raise the issue at a later time; each defendant, when asked, responded that he understood it. ¹ Only then did the hearing on the motion proceed. Six witnesses were called, three for defendants; the motion was argued and denied. On November 6, 1969, within thirty days of the denial, defendants filed in this court petition for writ of prohibition (2d Civ. 35528) whereby they sought reversal of the order denying their motion. On December 23, 1969, the petition was denied without opinion.

Meanwhile defendants retained new and separate counsel and on April 1, 1970, before Judge Schmidt, moved to renew their motion under section 1538.5, Penal Code. Over the People's objection that the court had no jurisdiction to rehear the matter, the motion to renew was granted and the cause transferred to Judge Warren L. Ettinger. On April 3, 1970, defendants sought to have the motion under section 1538.5, Penal Code, heard a second time; again the People objected but Judge Ettinger took 'the position inasmuch as new counsel have come into the case--there had been representations at least by counsel that there was by virtue of a conflict inadequate representation--the court giving the benefit of the doubt to the defendants is exercising its discretion and conducting the hearing.' The second hearing was had April 6, 1970, upon which the motion was submitted on the transcript of the testimony taken at the first hearing supplemented by additional testimony of Agent Feldman which was substantially the same as that given by him at the first hearing. Judge Ettinger granted the motion and suppressed 'all physical evidence.'

Petitioner contends that defendants having previously had a hearing and fully litigated the issue of search and seizure on their motion under section 1538.5, Penal Code, which was denied and for reversal of which a petition for writ of prohibition was filed and denied by this court, the trial court had no jurisdiction to hear the same motion a second time before trial.

The record establishes that on their motion of October 8, 1969, defendants had a full hearing at which extensive testimony was taken and the search and seizure issue was argued and decided adverse to them, and that the second hearing was directed to the same motion on the same grounds, raising the same issues and submitted on the same evidence. Moreover, defendants' position in the trial court that now they are represented by new counsel and 'by virtue of a conflict' were given inadequate representation on the first hearing, in addition to being no justification for a renewal of the motion before trial, was not well taken for the record demonstrates that the circumstances under which Judge Schmidt allowed them single representation foreclosed their subsequent assertion they were deprived of adequate representation because of it. In the absence of a transcript of the proceedings had on April 1, 1970, we do not know if defendants advanced their claim of inadequate representation to Judge Schmidt at the time he granted their motion to renew but clearly it was a significant factor considered by Judge Ettinger in 'exercising (his) discretion and conducting the hearing.' Aside from the fact that relitigation of a 1538.5 motion before trial because of new counsel and a claim of inadequate representation under such circumstances would permit several defendants represented by the same attorney of their own choice, fully understanding the problem of possible conflict of interests and expressly waiving their right to separate counsel, to gamble on the outcome of their motion and, if denied, on their petition to this court, there is no provision in the law for a second hearing on the motion prior to trial which would allow for an exercise of the trial court's discretion.

There is nothing within the ambit of section 1538.5, Penal Code, in the basic philosophy evident in the background of the statute or in any case of which we are aware that makes appropriate the renewal of a motion under section 1538.5 before trial. Section 1538.5, subdivision (i), provides in pertinent part: 'After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his motion at the special hearing?; and subdivision (m), 'The proceedings provided for in this sections, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be...