People v. Williams

• Decision Date: 07 September 1989
• Docket Number: No. B038235,B038235
• Citation: 213 Cal.App.3d 1186,262 Cal.Rptr. 303
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Christopher Darnell WILLIAMS, Defendant and Respondent.

Page 303

262 Cal.Rptr. 303

213 Cal.App.3d 1186

The PEOPLE, Plaintiff and Appellant, v. Christopher Darnell WILLIAMS, Defendant and Respondent.

No. B038235.

Court of Appeal, Second District, Division 7, California.

Sept. 7, 1989.

Review Denied Jan. 3, 1990.

Ira Reiner, Dist. Atty., Harry B. Sondheim and Patrick D. Moran, Deputy Dist. Attys., for plaintiff and appellant

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Sylvia Patton and Albert J. Menaster, Deputy Public Defenders, for defendant and respondent.

LILLIE, Presiding Justice.

Respondent was charged with commercial burglary (§ 459, Pen.Code); three prior felony convictions were alleged. (§§ 667.5, subd. (b); 1203, subd. (e)(4), Pen.Code.) His motion to set aside the information (§ 995, Pen.Code) on the ground the magistrate at the preliminary hearing improperly limited his cross-examination of the police officer on a search and seizure issue, was granted. The People appeal from order setting aside the information.

EVIDENCE AT PRELIMINARY HEARING

Mitchell Books, owned by John Mitchell, was forcibly entered on the night of April 19; the shop was "disshuffled," and a brown suitcase, bottle of wine and other items were stolen.

About 9 p.m. that night, Marjorie Turner, who lived above Mitchell Books, heard a banging and thudding in the shop below, and called police.

Upon his arrival, Officer Thomas saw the front door of Mitchell Books, which had been pried open and forced off its hinges, hanging by the deadbolt lock, and respondent, carrying a bottle of wine and a brown suitcase, followed by another male, leaving the front of the store; respondent was "just exiting the alcove of the business," he had "one foot on the alcove and one foot on the sidewalk." Officer Thomas followed the two men who walked east; after a short distance he made a radio broadcast then ordered them to stop, and the two were detained. The brown suitcase carried by respondent bore an identification tag in the name of "Mitchell"; the suitcase, bottle of wine and other items were later identified by John Mitchell.

MOTION TO SET ASIDE INFORMATION

The motion (§ 995, Pen.Code) was based upon the following limitation placed by the magistrate on defendant's cross-examination of Officer Thomas:

"Q. [by defense counsel] Now, for probable cause, what information had you received--and for probable cause only--what information had you received about what was happening at that location?"

To the objection that it was irrelevant unless "there is going to be a 1538.5 motion," defense counsel responded "Unless I know what the information is, I don't know whether there is going to be a 1538.5." The magistrate asked how it could be relevant unless there is going to be a 1538.5 motion, whereupon defense counsel again stated "I don't know whether there is going to be a 1538.5 motion because I don't know on what facts this officer based his detention of Mr. Williams on." The magistrate sustained the objection ruling that it is an issue of relevance, "If you want to make a 1538.5 motion, then it is relevant. If you don't want to make your 1538.5 motion at this time, it is not relevant."

Sometime later, defense counsel asked the officer two more questions to which relevance objections were sustained:

"Q. What was it about Mr. Williams that made you decide to stop him?"

"Q. Was there any reason that you picked out Mr. Williams as opposed to anyone else in the stop?"

In granting motion to set aside the information, the superior court found the magistrate erred, noting that a similar question had been asked by the People on direct examination, search and seizure are part of the res gestae of the crime subject to cross-examination, and the preliminary hearing serves as a discovery tool thus, the defense While we do not agree with the basis of the court's ruling, ¹ we reverse on the ground that, no suppression hearing (§ 1538.5, Pen.Code) having been made, the defense did not have the right at the preliminary hearing to cross-examine on the issue of the unreasonableness of the search and seizure. We hold this despite respondent's argument that--of course, a defendant has the right to use the preliminary hearing for discovery purposes to determine if he should later make a motion to suppress--because any such perceived right is not supported by either statutory or case authority, and would frustrate and render meaningless the 1987 amendment to section 1538.5, subdivision (i), Penal Code.

can question about anything that occurred during the commission of the crime.

I

STATUTORY AUTHORITY

In 1967 the legislature set up a mechanism for the return of property or suppression of evidence obtained as the result of a search or seizure, on certain enumerated grounds, by adding section 1538.5 to the Penal Code. It provides an orderly and unified procedure for making pretrial challenges to the admission of evidence on the ground that it is the product of an unreasonable search or seizure. As pertinent here, subdivision (f) provides, "the defendant may make the motion at the preliminary hearing in the municipal or justice court but the motion in the municipal or justice court shall be restricted to evidence sought to be introduced by the people at the preliminary hearing." Under subdivision (c), "Whenever a search or seizure motion is made in the municipal, justice or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion." Subdivision (i) provided that a defendant could make a motion to suppress at the preliminary hearing and if denied, could renew the motion in the superior court on which he was entitled to what amounted to a de novo hearing entirely independent of the preliminary hearing. Generally, the transcript of the preliminary hearing was inadmissible at that de novo hearing. (People v. Ramsey, 203 Cal.App.3d 671, 678, 250 Cal.Rptr. 309; Wilder v. Superior Court, 92 Cal.App.3d 90, 94, 154 Cal.Rptr. 494.)

To eliminate the "duplicate litigation of issues and repeat testimony with the attendant result of consumption of precious court time" built into the de novo process provided in subdivision (i) (People v. Ramsey, 203 Cal.App.3d 671, 678, 250 Cal.Rptr. 309), the legislature amended section 1538.5, subdivision (i), effective January 1, 1987, to provide that if no suppression To circumvent the restrictive evidentiary effect of amended section 1538.5, subdivision (i) in the superior court, the practice has become prevalent among defense lawyers to attempt to fully explore, even litigate, the search and seizure issue at the preliminary hearing without making a motion to suppress evidence. Indeed, if the magistrate permits it, such cross-examination results in the full exploration of the search and seizure issue at the preliminary hearing without a 1538.5 motion having been made, and allows a second full evidentiary hearing on a subsequent motion to suppress in superior court without being bound by the evidentiary restrictions of subdivision (i). Such practice undermines the purpose and effectiveness of amended subdivision (i), and allows the repeat testimony and relitigation of issues the amendment was designed to prevent (see People v. Anderson, 210 Cal.App.3d 24, 27, 258 Cal.Rptr. 125).

                motion is made in the municipal court, defendant has the right to fully litigate the validity of the search or seizure at a pretrial evidentiary hearing in the superior court.  If defendant makes his motion at the preliminary hearing and it is denied, he may renew the motion in the superior court but, unless otherwise agreed upon by all parties, the evidence presented at that hearing shall be limited to the transcript of the preliminary hearing.  (§ 1538.5 subd.  (i), Pen.Code.) 2  A defendant is now entitled to only one full hearing on his suppression motion.  The factual findings of the magistrate in most cases are binding on the superior court which, in effect, becomes a reviewing court drawing all inferences in favor of the magistrate's findings, where they are supported by substantial evidence.  (Anderson v. Superior Court, 206 Cal.App.3d 533, 538-539, 253 Cal.Rptr. 651;  People v. Ramsey, 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309.)
                

II CASE AUTHORITY

Respondent asserts that People v. Ciraco, 181 Cal.App.3d 1142, 226 Cal.Rptr. 541 and Bruner v. Superior Court, 207 Cal.App.3d 1193, 255 Cal.Rptr. 462 clearly show that the defense has a right to cross-examine on a detention, search and seizure issue at the preliminary hearing in order to decide whether to make a suppression motion. But neither case supports the position that a defendant is entitled to explore search and seizure issues at the preliminary hearing absent a motion to suppress. People v. Ciraco, 181 Cal.App.3d 1142, 226 Cal.Rptr. 541 holds that no prior notice is required for a 1538.5 motion made at the preliminary hearing because nothing in the statute requires advance notice and further, the defense might not learn of the evidence to be introduced and the manner in which it was obtained until the prosecution presents its case at the preliminary hearing. It is the following statement by the court that respondent claims supports his position. "Moreover, we have an obligation to construe the statute to promote its purposes and render it reasonable. [Citation.] Despite modern discovery, a defendant The court in Bruner v. Superior Court, 207 Cal.App.3d 1193, 255 Cal.Rptr. 462, which holds that a suppression motion made at the close of the People's case on the preliminary hearing was not untimely, cited the foregoing from Ciraco and added at page 1196, "The People take the position that the motion to suppress must be made as soon as the defendant becomes aware of the evidence to be introduced. Such a requirement is not reasonable. It could require the motion before the defense was fully aware of the manner in which the evidence was obtained and...