Thompson v. Superior Court for Los Angeles County

• Court: California Court of Appeals
• Writing for the Court: McCOY; HERNDON, Acting P.J., and FLEMING
• Citation: 68 Cal.Rptr. 530,262 Cal.App.2d 98
• Parties: Eddie Leon THOMPSON, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 32959.
• Decision Date: 10 May 1968

Page 530

68 Cal.Rptr. 530 262 Cal.App.2d 98 Eddie Leon THOMPSON, Petitioner,
v.
SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;
PEOPLE of the State of California, Real Party in Interest. Civ. 32959. Court of Appeal, Second District, Division 2, California. May 10, 1968.
As Modified on Denial of Rehearing May 27, 1968.

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[262 Cal.App.2d 100] Alan Saltzman, Los Angeles, for petitioner.

No appearance for respondent.

Evelle Younger, Dist. Atty., Harry Wood, Chief, Appellate Division, and Robert J. Lord, Deputy Dist. Atty., for real party in interest.

McCOY, Associate Justice. ^*

Petitioner is defendant in a criminal action, number A229289, now pending in the Superior Court for Los Angeles County, in which he is charged with possession[262 Cal.App.2d 101] of marijuana in violation of section 11530 of the Health and Safety Code. The information was filed February 15, 1968. On March 4, according to the minutes for that day, 'Defendant's motion for dismissal under Section 995 Penal Code and motion to suppress evidence pursuant to Section 1538.5 Penal Code (were) argued and both denied.'

On April 3, 1968, defendant filed the petition now before us for a writ of mandate directing the respondent court to suppress certain evidence or, in the alternative, for a writ of prohibition restraining that court from taking any further proceedings on the charge now pending against him. We issued an alternative writ commanding the respondent court to vacate its order denying defendant's motion under section 1538.5 and to grant that motion or to show cause why it had not done so. No return to that writ was filed by the respondent or by the real parties in interest. When the matter was called for hearing on the return day the petitioner and the People submitted the matter without oral argument.

We have concluded that alternative writ was improvidently issued and should now be discharged and that the petition should be denied because of the failure of petitioner to present an adequate petition and a proper record upon which this court might base a decision on the merits.

Section 1538.5, added to the Penal Code in 1967 (Stats.1967, ch. 1537), provides that '(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on the ground that: (1) The search or seizure without a warrant was unreasonable; or (2) The search or seizure with

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a warrant was unreasonable because (i) the warrant is insufficient on its face; (ii) the property or evidence obtained is not that described in the warrant; (iii) there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; or (v) there was any other violation of federal or state constitutional standards.' When a search warrant is involved 'the motion should first be heard by the magistrate who issued the search warrant' (subd. (b)), and 'If the property or evidence relates to a felony offense initiated by a complaint, the motion may be made * * * at the preliminary hearing' (subd. (f)). It is further provided that '(c) Whenever a search or seizure motion is made in the municipal, justice or superior court as provided in this section,[262 Cal.App.2d 102] the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.'

Subdivision (i) of section 1538.5 provides that 'If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after notice to the people unless the people are willing to waive a portion of this time. The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing. 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.'

We note further that, under subdivision (m), 'The proceedings provided for in this section, 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 the property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered against him.' ¹

Although section 1538.5 leaves much to be desired for the sake of clarity, it seems abundantly clear that a motion 'for the return of property or to suppress as evidence any tangible or intangible thing ² obtained as a result of a search or seizure' may be made Only on one or more of the grounds set forth in...