Smith v. Superior Court

• Decision Date: 11 January 1978
• Citation: 76 Cal.App.3d 731,143 Cal.Rptr. 109
• Parties: Louis Denver SMITH, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. Danny Joseph FABRICANT, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY; The PEOPLE, Real Party in Interest. Civ. 51188 and Civ. 51215.
• Court: California Court of Appeals Court of Appeals

Page 109

143 Cal.Rptr. 109

76 Cal.App.3d 731

Louis Denver SMITH, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

Danny Joseph FABRICANT, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY;

The PEOPLE, Real Party in Interest.

Civ. 51188 and Civ. 51215.

Court of Appeal, Second District, Division 4, California.

Jan. 11, 1978.

Hearing Denied Feb. 10, 1978.

Plotin & Stovack and Richard Plotin, Encino, for petitioner Smith.

Danny Joseph Fabricant, in pro. per.

John K. Van De Kamp, Dist. Atty., Harry B. Sondheim, Head-App. Div., Donald J. Kaplan and Daniel L. Bershin, Deputy Dist. Attys., for real party in interest.

No appearance for respondent Court.

KINGSLEY, Associate Justice.

These two petitions raise important questions as to the procedure by which a defendant may obtain a pretrial appellate review of a trial court's ruling on a motion under subdivision (i) of Penal Code section 1538.5. ¹

A defendant in a felony case, seeking to avoid the use of evidence obtained by an unreasonable search and seizure, has two avenues of attack. He may move to set aside an indictment or information under section 995 of the Penal Code, or he may move to suppress the evidence by a motion under section 1538.5 of the Penal Code (Witkin, Cal.Evidence (2d ed. 1977 Supp.), § 71B, p. 23). Or he may, as here, use both methods of attack. If he elects to proceed under section 995 and his motion is denied, he may seek immediate appellate review by a petition for a writ of prohibition filed in the appellate court within 15 days after his motion is denied. (Pen.Code, § 999a.) If he elects to proceed under section 1538.5, he may seek appellate review under subdivision (i) of section 1538.5 if he files his petition within the 30 day period prescribed by that subdivision. However, a defendant need not resort to immediate appellate review by writ, but may go to trial and, if convicted, raise the denial of his 995 or 1538.5 motion on appeal from the judgment of conviction.

Since the motions herein involved were denied on April 27, 1977, and the petitions were filed in this court on May 24, 1977, the time requirements of section 1538.5 were met. However, the record discloses a problem as to another procedural requirement for appellate review by writ. Section 1510 of the Penal Code provides as follows:

"The denial of a motion made pursuant to Section 995 or 1538.5 may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant's arraignment on the complaint if a misdemeanor, or 60 days following defendant's arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue."

The record before us shows that, at the time of arraignment, on August 19, 1976, the following occurred:

"DEFENDANT FABRICANT: For the record, I would like to reserve a 995 and 1538.5.

"THE COURT: It will be reserved for you.

"MR. PLOTIN: That will be noticed also on behalf of Mr. Smith.

"THE COURT: Well, we require those to be in writing. A 1538, as I indicated previously, can be noticed for the date of trial. Any other motions can be noticed prior to the date of trial, with ten days notice to the People."

Motions under section 995 followed. Those motions ultimately were denied on January 14, 1977, and a petition under section 999a was denied by Division Three of this Court on February 2, 1977, with an order reading as follows:

"The petition is denied without prejudice to a motion by petitioner pursuant to Penal Code section 1538.5."

Thereafter, for the first time, written motions under section 1538.5 were filed. They ultimately were denied on April 27, 1977.

Clearly, the proceedings at the time of arraignment were insufficient to constitute the "motion" required by the statute. Those proceedings did no more than to advise the trial court and the People that petitioners had under consideration the making of such a motion. Petitioners did not indicate by anything that they said that such a motion would, in fact, be made. At that stage, not only did petitioners have a choice of tactics in deciding which avenue of attack they might make, but they had not, necessarily, even decided that any attack on evidence would be made. A motion is an application to the court for an order. (Code Civ.Proc., § 1003.) The applicant must, in some way, communicate to the court what order is desired and upon what grounds. (See People v. Sirhan (1972) 7 Cal.3d 710, 740, 102 Cal.Rptr. 385, 497 P.2d 1121; People v. DeSantiago (1969) 71 Cal.2d 18, 22, 76 Cal.Rptr. 809, 453 P.2d 353; Witkin, Cal.Criminal Procedure (1965) § 22.) The cryptic statement made by the defendants on August 19, 1976, did not tell the court that they would make a motion to suppress, or what they would want suppressed, or the grounds of suppression. ² It follows that petitioners are not entitled to pretrial appellate review of the trial court's ruling, and that the petitions must be dismissed.

The petitions are dismissed.

FILES, P. J., concurs.

JEFFERSON, Associate Justice, dissenting.

I dissent.

The majority dismisses the petitions on the ground that petitioners failed to comply with the requirements of Penal Code section 1510. It is the view of the majority that petitioners failed to make motions pursuant to Penal Code section 1538.5 within the 60-day time requirement following their arraignments. The 60-day time limitation is required by Penal Code section 1510 to qualify defendants for a pretrial appellate review of trial court orders denying motions made pursuant to Penal Code section 995 or 1538.5.

The majority reaches its result by construing the proceedings on arraignment of petitioners on August 19, 1976, as not involving the making of any motions by petitioners. In my view, this is an unjustifiably narrow interpretation of the words spoken at the arraignment of petitioners. The majority's holding also results in an erroneous construction of Penal Code section 1510.

Section 1510 was added to the Penal Code in 1971. (See Stats., 1971, ch. 944, § 1, p. 1852.) Section 1510 does not define what is meant by the phrase, "if the motion was made by the defendant in the trial court," within the time limit specified. The concept of any motion involves three elements: 1. The motion itself; 2. Notice to the adversary; and 3. The hearing on the motion and the court's ruling thereon. Section 1510 does not prescribe what the motion should contain or whether the motion is to be made orally or in writing. The section does not set forth that certain magic words must be used to constitute the making of a motion to secure relief pursuant to Penal Code section 995 or 1538.5. Neither does section 1510 set forth any requirements as to notice to the prosecution. Neither does it specify any requirements as to when the trial court shall conduct a hearing on the motion.

Since Penal Code section 1510 does not specify any requirement that a motion made pursuant to section 1538.5 of the Penal Code shall be in writing, I would construe the section as permitting a defendant to make an oral motion. The only requirement that I read into section 1510 is that a defendant shall make such an oral motion within 60 days following his arraignment on the information or indictment. Once he has made such an oral motion within that time limit, he has satisfied all requirements for a pretrial appellate review of the trial court's denial of the motion, even though the evidence desired to be suppressed, the grounds in support of the motion, the notice to the prosecution, and the hearing and ruling on the motion are made more than 60 days following the defendant's arraignment.

The majority construes Penal Code section 1510 as requiring that the evidence sought to be suppressed and the grounds supporting the motion be set forth before it can be said that "the motion was made by the defendant in the trial court not later than . . . 60 days following defendant's arraignment on the information or indictment . . . ." I do not think that section 1510 should be given this narrow and technical construction. As long as a statement of the evidence sought to be suppressed and the grounds in support of the motion are made known to the court and the prosecution and the hearing is held, all prior to trial, the requirements of section 1510 should be deemed satisfied. The motion has been made within the 60-day period following arraignment, even though the additional details...