*1 Dist., Fourth Div. Two. Jan. No. 9953. 1979.] Crim. PEOPLE, Plaintiff and
THE Appellant, al., SAHAGUN et Defendants
PAUL XAVIER Respondents.
Counsel Morton, Prevost, Sue District F. De Jeff C. Attorney, Gasperin
Byron for Plaintiff and District Appellant. Attorneys, Deputy Bell, Rudnick, Miller, Bell,& Morrow Fletcher W. D. Robert Boyko Roy and F. for Defendants and Paddison Latimer Gould Respondents.
Opinion
KAUFMAN, J. from an order Riverside The Peopleappeal aside an Court indictment. The record discloses numer- setting errors, ous not the of which was the least court’s deciding principal on the issue basis of unsworn statements of defense counsel question camera, received in outside the presence People’s legal representa- tive. the order will be reversed and the case remanded Accordingly, court trial of the several involved in relitigation questions proper proceedings. 22, 1978,
On the Grand of Riverside returned an February Jury County indictment defendants and Gilboe them against Sahagun charging jointly II Code, count 487, with theft on (Pen. § subd. grand 1) January 1977, and in count III with trafficking supplies bearing registered Code, trademark or tradename & (Bus. Prof. on the 14484-14491) §§ date; same defendant Gilboe in count IV with separately charging Code, stolen (Pen. 496), § or about receiving property, felony 1, 1977, and defendant I count January Sahagun separately charging Code, with theft (Pen. 1) subd. on December 1976. § grand defendants assert evidence was Although incriminating obtained an unlawful search and seizure and was therefore through do not otherwise contend the evidence was insufficient incompetent, to establish cause. the facts be summarized as probable Accordingly, may follows.
Environmentals, is in of the business clean linens Incorporated renting hotels, motels, and similar institutions. its hospitals Although principal Anaheim, of is in it business does considerable business the Palm place area. Defendant was as a route man Springs Sahagun employed Environmentals. His duties included a truck loaded with fresh driving area, linen over a route in the Palm supplies designated Springs calling on contract customers of Environmentals to them specified delivering linens from the truck. The customers would for the linens sign receipt received them. would then drive the truck back Environ- Sahagun mentals. the for total linens which had Theoretically, Sahagun truck, from customers the linens if on receipts plus remaining any, his return would be to the total amount of linens with which the equal was he cover truck loaded when left to the route.
7 Environmentals, Dickson, Mr. Howard became manager plant of linens because he was Sahagun improperly disposing suspicious short On returning Orange County chronically upon plant. 28, loaded, 1976, when truck was Dickson assured December Sahagun’s linens himself that of the truck was correct and placed inventory the truck with locks to which he had the The then locked new only keys. remained so December 29. truck locked until of That morning Mr. Dickson unlocked truck but truck under his morning kept own out observation until drove it When Sahagun personal gate. returned with the truck that the customers’ Sahagun evening, receipts and the were tallied linens on the truck inventoried. Some remaining $1,100 worth for, of linens were unaccounted 100 double-sized including sheets, towels, 140 all, bath hand towels and In bathmats. large made some 14 of bundles linen that on had been the truck when up it on the of left All the December 29. linens plant morning missing had them the on trademark or Environmentals, tradename of registered did all linens rented Environmentals to customers. its
On of of Mr. evening January January morning Dickson on same as he had December 28 and engaged procedures to ensure of linens on Mr. accuracy inventory Sahagun’s truck when it left the 5. on plant January Gilboe Palm
Defendant was the of a hotel in known proprietor Springs as the He was a contract customer Environmentals. Holiday Lodge. The between contract Environmentals and Mr. Gilboe with respect 15, 1976, was renewed October of one for a and a Holiday Lodge period It half contained a Environmentals’ years. provision authorizing employ- ees to enter the normal premises business Holiday Lodge during hours for “and or purpose taking physical inventory recovery of linen At an items rented.” earlier time defendant had Sahagun been a route that included as a customer to be assigned Holiday Lodge However, 5, 1977, serviced. Mr. authorized January route Sahagun’s Gilboe, include the did not or Mr. and Mr. Lodge Holiday Sahagun to deliver linens to authorized Mr. Gilboe or Holiday Lodge. *7 Oscar Perez Environmentals, Mr. was the for production manager At the direction of his he had to follow Incorporated. employer attempted Mr. on his route on December 29 but had lost him. Sahagun During 5, 1977, he observed at day January Holiday Lodge truck, driven Mr. He Environmentals saw defendants Sahagun. and Gilboe bundles of linens the truck and from Sahagun taking putting The were the them into canvas hampers. hampers property laundry Environmentals, authorized to have them. Perez saw and Gilboe was not inside an one of the and Gilboe laundry hampers Sahagun push He International Travel-All. then saw it inside an enclosure and put arrested, man after which he and a and defendants Gilboe Sahagun being to Environmentals a list of the linens named Bill Biernat made belonging that Gilboe of the linens were at the scene. Some found hamper time,” were inside the at the and some “were and Sahagun loading all, In Travel-All, inside a shed behind the and the balance was building. . $6,000. were worth the linens recovered approximately Mr. Perez’ that some of the linens were In connection with testimony he how found in “a shed behind the was asked he had building,” gotten there do and “We walked that door that back that responded: through He further testified that Mr. Gilboe Mr. Gilboe opened.” opened Biernat, door at the of Mr. consultant for Environmen- security request Dean White testified that tals.1 Palm Police Officer he and Gary Springs officer named Jackson went to the another Holiday Lodge January Biernat, Bill after contacted and there arrested defendants being that Mr. Biernat Mr. Gilboe and He further testified asked Sahagun. Mr. Gilboe “to return the rest of his linen” and Gilboe response the Travel-All van was to a area where opened yard sitting gate He testified that Environmentals’ truck filled with linens. also partially that the side door of in front of Holiday Lodge, directly parked next to it with linens in it. that a bin was the truck was and laundry open as were exhibited to the these jury things grand Photographs depicting area inside the shed at the was a gate edge yard photograph linen within it with that showed covered plastic. piece Environmentals, testified that Silver, an area Mr. Lou manager on a basis at all accounts he took inventories his duties one of regular he time without and that desert area attempted every exception he met with some at an to take Holiday Lodge type inventory an On not successful in making inventory. frequently opposition but 4, 1977, to take he inventory Holiday Lodge attempted January not on the Mr. Gilboe was because was unsuccessful premises area. He then did not have a stated she storage key got manager to take an with Mr. Gilboe inventory following touch arranged 5, 1977. When he took inventory morning, morning January observation, of Environmentals’ linens recovery inventorying it is this 1Apparently contend constituted an unlawful search that defendants of Holiday Lodge, at the premises discussion, (See infra.) and seizure. *8 closets inside the He were all in two linens storage lodge. specifically were linens stored in other area on the asked Mr. Gilboe if there any any whatever,” of reserve or and Gilboe “any replied premises, type he took on the “no.” The inventory morning January positively for what Gilboe should have an amount of linens disclosed appropriate 5, later in the he saw Mr. testified that had. Silver day January Finally, them, that their Travel-All van with linens shed and the the storage linen where he had different from the closets location altogether that he had no linens earlier in the made his day, knowledge inventory shed, and that “these were in the Travel-All van were stored being linen.” big quantities record, defendants the exact date is disclosed by
Although Gilboe were on the indictment in due Sahagun apparently arraigned course. 4, 1978,
On defendant Gilboe filed a notice of motion to set aside April without the indictment on the he had been indicted reasonable or ground Code, 995, cause. Pen. first subd. The basis for the (See 2.) § probable is, motion was that “the evidence . . . considered before the grand jury law, ... a matter of evidence in that such evidence has been incompetent before a court of as seized previously suppressed competent jurisdiction in violation of defendant Gilboe’s constitutional and that such rights, made, and an exclusion of this evidence which the indictment is any upon fruits of that evidence renders that evidence gained thereby, incompetent to, further but not exclusive legal grand purpose, including, indicated that indictment herein involved.” The notice of motion jury file and other the motion was made “on the preliminary among things Gilboe, v. such evidence” in the case of People excluding 30510, Court of the Desert Judicial District. case No. Municipal 7, 1978, On defendant in defendant Gilboe’s April Sahagun joined 995 motion and filed and authorities a section as additional points Court and authorities filed him in the points Municipal photocopy of the Desert Judicial District in case No. entitled People directed unlawful search and seizure issue Sahagun, exclusively to assert such based on a violation of right Sahagun illegality Fourth defendant Gilboe’s Amendment rights. and authorities in
On filed points opposition April to set aside indictment. In their statement of facts the to the motion 17, 1977, had been conceded that on January felony complaints Court defendants in the Palm filed (Municipal Springs Municipal against *9 Court of the Desert Judicial District) defendants with substan- charging incidents; the same oifenses out of the same that in those tially arising cases the defendants had filed Code, motions to evidence (Pen. suppress which were heard 1538.5) § to the by magistrate immediately prior 18, 1977; on that the had ruled preliminary hearings February magistrate there was an unlawful search and seizure and suppressed evidence; and that when the matters were called for preliminary hearing evidence, chose to and the both People present complaints against that, defendants were dismissed It was further stated by magistrate. is borne out was informed of by grand jury transcript, grand jury these earlier when it returned the proceedings magistrate’s ruling indictment defendants on 1978. subdivision against February Citing 1538.5, of Penal Code section contended in their (j) points authorities that the evidence not rendered presented grand jury because of the on the motion to incompetent ruling magistrate suppress.
Defendants’ motion was on 14 and continued for further argued April 20. On the date of argument ruling April defendant Gilboe filed a memorandum of and authorities in points opposition that of the for the first time that the People, asserting one-year delay between the dismissal of the in the court and the charges municipal return of the unreasonable, indictment was and constituted prejudicial harassment the district It was asserted that two by months after attorney. the dismissal of the court, criminal Gilboe proceedings municipal had filed a civil action defamation, libel, Environmentals for trade against breach of contract and infliction of emotional distress and that wrongful “this second criminal action ... is a direct product pressure applied the defendants in the civil action. . . .” On the prosecutor’s [the office] same defendant Gilboe filed a memorandum of day supplemental points and authorities in which he contended that the court was bound superior the factual at the evidentiary rulings magistrate presiding motion in 1977 consent to the (Gilboe’s search), that the suppression harassment,” indictment constituted that subdivision of Penal “benign (j) Code section 1538.5 should be construed as containing implied that a new be filed or an indictment be requirement complaint sought without unreasonable and that one delay, by delaying year reinitiating him, had denied defendant Gilboe due charges against of law. process memorandum of and authori-
Accompanying supplemental points ties was a declaration Gilboe’s that he and his law firm attorney stating Mr. Gilboe the 1977 and had initiated an represented *10 5, 1977, behalf, into the events of on his that as investigation January part “both of he and in interviewed investigation, telephonically person witnesses who revealed Mr. highly exculpatoiy testimony” favoring indictment, Gilboe and that since the were to made contact the “attempts witnesses who to be and unavailable are out foregoing appear reportedly court’s It was further averred that “This office jurisdiction.” certain leads to the offenses initially relating pursued evidentiary charged which were in nature. As a likewise ... result circumstan- exculpatory months, tial the last twelve this evidence nois changes occurring during available, but could have been had defendant been made longer pursued aware within reasonable time of a reindictment. ... period [If] this declarant informed and that believes certain evidence Finally, available to defendants been has which would have formerly destroyed nature, been but which is exculpatory unfortunately longer available to the defense.”
On the same the district filed a day memoran- attorney supplemental dum of and authorities on behalf of the points People, contending the indictment was need for the seeking justified by of additional evidence development the illness and by prosecution, of witness Dickson for a number of months and the unavailability press of business before the which of the grand jury precluded presentation matter for several weeks. It was further contended there was no the defendants that had suffered adequate showing by substan- tial or been denied due of law the prejudice As exhibits process delay. authorities, memorandum and supplemental points People filed declarations District K. L. Pike forth in by Deputy Attorney setting some detail the taken him in connection with the case between steps the dismissal in the and court the return of the indictment. He municipal declared, other had he set the matter for among things, presentation on October but felt grand juiy required postpone when he learned that witness Dickson had had a heart presentation installed and was unavailable to that it was pacemaker testimony, give not until 1978 that Dickson was able to and that Januaiy give testimony thereafter the matter could not be until presented grand jury 22, 1978, because of the February preoccupation grand jury, with undercover narcotic and cases. primarily drug At the defendant all memoran- April Sahagun adopted da and memoranda of and filed on authorities behalf supplemental points Gilboe, of defendant their presented parties arguments along lines set forth in their memoranda of respective authorities. points The with to the search and position seizure respect problem the effect on the motion to magistrate’s ruling made suppress court is superior epitomized “The have not following: consent, discussed the issue of the 1538.5 issue Carroll presented Judge because it is not relevant at magistrate], . . . [the That is not point. [¶] before the court. What is in the Grand jurisdictionally Jury transcript, evidence to the Grand aas presented indicates a Jury reviewing body, situation, consent as the court has . out. . . pointed testimony [T]he *11 to the Grand rise to a reasonable presented Jury of gives presumption and therefore the 995 before the court be legality, must denied. . .” . And, “The search and seizure I submit again: is not question legal before the court. All that is before the court is a cause finding probable from the of the indictment.” The district transcript out attorney pointed that a motion to under Penal Code section 1538.5 would be suppress available the defendants if the section 995 motion were denied. In connection with the on the trial” argument “speedy “prosecuto- issue, rial counsel for delay—due defendant Gilboe an process” requested camera in to “relate to effect has that been hearing you prejudicial reluctant, incurred us this I am in upon delay], [prosecutorial highly I court, fact refuse to it do in for the obvious reason that the open defendant the civil . . . involved in this corporate litigation] [in deeply. There is on . witnesses. . .” the court pressure being put Eventually, this in camera over the granted request hearing objection what said in would be unable answer or rebut they since would have it. camera knowledge The court then excluded the district and all other attorney persons from the courtroom the court the defendants and their except personnel, taken, evidence but No for defendant Gilboe attorneys. attorney to make a statement some the witnesses he had proceeded concerning interviewed and the he had then made and investigations argued effect of the His statement was somewhat prosecutorial delay. prejudicial and was from the court and inter- disjointed interrupted by questions However, with it is fair to he identified a spersed argument. say with he or his had number whom law firm had some persons be communication and from whom he able some expected produce it was hotel-motel (1) evidence that common industry practice the Palm area to of linen the tourist Springs “stockpile” supplies during season and that this was known to and Environmen- practice accepted by tals, or it common (2) that was for Environmentals’ route drivers practice to switch in order to aid each other desert routes routes stops the hotels and motels. few facts were stated servicing Although specific with that had efforts been made to locate the witnesses now respect unavailable, said to be it was stated that several of the hotels and motels hands, from which witnesses could have been obtained had changed witnesses were no there and that a number potential longer employed of route drivers who have been had left might willing give testimony addition, the area or were otherwise unavailable. In it was said that a gas station attendant known to the defense a common first name but only by who could with that of Mr. Biemat allegedly give testimony conflicting was unavailable because the station was sold and he left the area. It was also said that the defendants’ recollections of the had events dim. grown
When the in camera had been almost the court completed, “Well, stated: now is that I to hold In my feeling right ought I Camera as confidential information. If should elect to hold for your *12 are to have to it on I’m sure will position, you going argue appeal; take it At the conclusion of the in camera but to the up.” hearing, prior courtroom, district return to the the court stated: “I’m not attorney’s confidential, to find this is if I mle for I’m to make it going you, going was—or, available to the District that the offer of Attorney, testimony I should that was elicited from say, proof, you gentlemen morning.” Thereafter resumed in court. The court asked proceedings again open whether counsel had further to Counsel for defendant any anything say. Gilboe a bit more. The district of what argued attorney, knowing nothing camera, was said in reminded the court that the declarations of only District Pike and Mr. Biemat indicated the that Deputy Attorney steps had been taken to needed evidence during intervening year gamer the matter to the present grand jury. court
The then announced its The indicated that from his ruling. judge he could not find a valid consent on reading grand jury transcript, of Mr. Gilboe and that he believed there was an unlawful search part and seizure warrant because search should have been obtained indicated, however, “whether or not there was He further a consent.” that basis for his decision was the that principal prosecutorial delay; he felt the “reasons for . . . are valid reasons to a although delay large extent,” he the “offers of made in was convinced camera that proof’ numerous witnesses to the defense were now unavailable and important “that the what be 18 months ... or even would two delay eventually is a that makes defense of the untenable.” At the years, delay charges remarks,2 his
conclusion of “I stated: am order judge going be made available to the District of the In transcript Camera Attorney which was offers of well but taken ones. . . proceedings, solely .” proof, The made, a minute day hearing, April entiy reading: “Motion to 995PC is pursuant granted.”
On contend the trial (1) court appeal abused its discretion in the indictment on the basis of quashing prosecutorial delay because the evidence on that issue competent demonstrates that clearly involved was prosecutorial and discloses no amply justified defendants, substantial that, (2) prejudice singly collectively; event, the trial court of their to cross-examine deprived right witnesses, rebuttal evidence and make present meaningful argument by defendants an in camera granting hearing, attempting weigh prejudice to the defendants on the basis the “offers of against justification proof’ camera, received in the issue on the basis of “evidence” deciding ex (3) that presented parte; ruling magistrate municipal court in 1977 did not render the evidence presented that the trial (4) court’s conclusion there was grand jury incompetent; an unlawful search and seizure is without in the evidence support presented grand jury.
Defendants contend3 that the court defendants (1) granted properly camera court’s determination (2) hearing; prejudice *13 defendants from the the evidence of delay prosecutorial outweighed evidence; is substantial that (3) the justification supported by right to reinstitute criminal is to the condition prosecution proceedings subject that be reinstituted without unreasonable and that the delay harassment; reinstitution of criminal them constitutes proceedings against his the 2In remarks indicated that he also considered several factors judge entirely to the decision was he to make. He stated in “. . . I inappropriate think required part: case, this is the kind of matter that can be settled and in a civil decided and civil fairly defendant, If is there procedure. any the damage defendant corporate corporate the .will have in recover a civil further find that there opportunity and was procedure, undue on the of part the defendant in corporate case to marshall the particular for evidence a of time protracted . . . .” period 3On defendant of appeal, has the brief filed on behalf defendant Sahagun adopted and, as the Gilboe. further, inasmuch the were identical offenses defendants charged against in the view of fact in that the facts do not relate to one defendant the necessarily manner the same as to other that in the brief filed on behalf of defendant Gilboe the him, are made on the of arguments basis the facts as relate to the adopted they procedure however, counsel would by some the bases of our ordinarily pose problems. Happily, alike, decision to both defendants apply the be potential may disregarded. problems
15
the
court was bound
factual
that
trial
findings
(4)
by
regarding
consent made
Gilboe’s
by
magistrate
suppression hearing
event,
court
1977;
that, the trial
made
and (5)
independent
there
unlawful
not consent and that
was an
search
that Gilboe did
finding
evidence before the
and seizure
grand
incompetent.
jury
rendering
Search
Evidence
Seizure—Incompetent
Unlawful
1977
court considered
Whether
trial
suppres-
transcript
made an
court
finding
motion
independent
sion
municipal
that the evidence
its conclusion
on the
based
transcript,4
solely
grand jury
was
of an unlawful search and
it
because
product
incompetent
law and can
accounted
as a matter of
be
was erroneous
only
seizure
first,
counsel,
defense
of the misconceived
a
urgings
product
and,
court
bound
subsequently,
trial
magistrate
ruling
Court,
483 P.2d
It true where a initiated felony prosecution a motion the defendant make evidence on complaint, may suppress the basis an unlawful search and seizure to be heard with the Code, 1538.5, subd. (Pen. (f)), § magistrate’s preliminaiy hearing be motion reviewed on motion to set may ruling suppression Penal Code 995 (see aside information section Smith v. pursuant Court, 733 v. 109]; Cal.App.3d Cal.Rptr. [143 Sanchez, 664, 690, fn. 15 [disapproved Cal.Rptr. [101 193] Martin, 687, 695, fn. 8 on another Cal.3d (108 point review the 511 P.2d and that such 1161)]) Cal.Rptr. upon superior if are is bound the factual determinations court magistrate *14 asserted brief filed on behalf of defendant Gilboe that trial 4It is in the the appellate to with a the motion and in transcript suppress preliminary court provided hearing However, 18, 17 1977. assertion is court and that outside February quite the municipal it have been for the trial the record. As we shall would court to explain, improper in the the of the absence of a all proceedings stipulation consider transcript prior the not indicate defendants that the by but record does court take any request parties, and as our notice of the so far of the hearing transcript suppression reading judicial discloses, the time the only suppression reporter’s transcripts transcript mentioned, the did not have that before it. trial court indicated it The court transcript matter, the said: “As I recall the at Grand on the there is some testimony Jury hearing I in mind from the and don’t have the Preliminary my testimony, Hearing question (Italics added.) . .” so I what was to there.. don’t know transcript, testified
16 Sanchez, v. (see substantial evidence v. supported People supra; People Heard, 747, 266 749 It has even 374]). "been Cal.App.2d Cal.Rptr. [72 that is true also a motion to set aside indictment suggested if under Penal section 995 all the facts search and relating Code, seizure issue in the v. (See jury transcript.5 appear grand People Superior 581, 585 Court 276 see (Kusano), 42]; also Smith Cal.App.2d Cal.Rptr. [81 Court, 16 v. 731.) supra, Cal.App.3d Superior However, the review of the on a motion magistrate’s ruling suppression Code 995 afforded Penal section of the pertains ruling on a motion in the same as magistrate suppression prosecution made, which section 995 motion is not in some earlier prosecution When, here, the same a first has been termi charges. prosecution that the as a result of evidence nated magistrate’s ruling incriminating was the of an search unlawful and seizure and a determination product that, evidence, such evidence is insufficient excluding remaining answer, hold the accused to elect to refile the People may charges or to reinstitute criminal indictment. complaint proceedings by grand jury Bracamonte, 394, v. 15 528, Cal.3d 399 540 P.2d (People Cal.Rptr. [124 Uhlemann, 662, 657, v. 9 624]; Cal.3d 666 511 P.2d People [108 Cal.Rptr. Combes, 135, 4, v. 56 Cal.2d 145 609]; 363 P.2d People 4].; Cal.Rptr. [14 Podesto, v. 62 708, 720-721 see People 409]; Cal.App.3d Cal.Rptr. [133 1019, v. 41 1030 Pen. People Belknap, 664]; Cal.App.3d [116 Cal.Rptr. Code, 1538.5, so, subd. § When do the reinstituted (j).6) criminal second, a constitute Combes, v. proceedings separate prosecution. (People 56 144-145; Cal.2d at see Godlewski, 677, v. 22 Cal.2d pp. supra, People 682-683 P.2d v. 381]; 41 at supra, [140 Belknap, 1031; Court, cf. v. Bellizzi 12 Cal.3d 38 p. Cal.Rptr. [115 In the second 148].) P.2d determinations made in prosecution, first, determination the evidence resulted from an including seizure, search and not unlawful are not res v. only judicata (People Prewitt, Howard, 52 Cal.2d see P.2d 1]; [341 5Since before the are grand jury and adversary nature no motion on the is suppress part accused authorized in such it is most proceedings, that all the facts search and unlikely concerning seizure would appear grand jury case, In the instant transcript. example, grand contains evidence jury transcript seizure, unlawful and search the district inform although did attorney grand had earlier magistrate jury granted defendants’ motion 'on the suppression had unlawful there been an search and ground seizure. 1538.5, Code section 6Penal subdivision reads in “If the (j) or pertinent part: property relates evidence offense initiated felony the defendant’s motion for by complaint return the evidence at the property suppression preliminary hearing is not held to answer at the granted, preliminary hearing, may people if defendant a new or seek an indictment after the complaint hearing, preliminary ruling file *15 added.) (Italics the shall not be prior hearing binding any subsequent proceeding.”
17 Podesto, 62 v. 505]; 1023 supra, People Cal.Rptr. [133 Cal.App.3d at 1030- v. 41 708; pp. Belknap, supra, Cal.App.3d People Cal.App.3d Uhlemann, v. not even to be considered (see are 1031), People supra, they Prewitt, Combes, 669; v. at cf. v. 9 Cal.3d People supra, p. People supra; 339-340; v. 41 at at 52 Cal.2d supra, Cal.App.3d pp. People Belknap, the tend to demonstrate unlawful to extent 1031) prosecu except p. Uhlemann, Godlewski, v. v. torial harassment (see People supra; People Podesto, 683; 22 at v. 62 at Cal.2d p. People supra, Cal.App.3d supra, or the accused’s to trial 721) prosecutorial abridging right speedy p. Court, 38, 42, 12 fair trial v. at (Bellizzi or Cal.3d Superior supra, pp. 2; 41 see v. fn. 1032). People Belknap, supra, Cal.App.3d p. court, aside the remand to the trial defendants’ motion to set
If on forward, and defendants will is denied the is to indictment go prosecution the and seizure search be entitled by challenge validity pretrial 1538.5, subdivision (i). to Penal Code section. motion suppress pursuant however, has been motion to and no there no To this suppress point, the for the ascertainment of facts to the relating proceeding adversary search and seizure. The trial unlawful claimed proceeding to Penal Code was a motion to set aside indictment court pursuant limited 995. In that motion the trial court was to a section determining consideration of the evidence contained in (See grand jury transcript. v. Court 276 Even (Kusano), 585.) Superior supra, Cal.App.2d at p. People evidence, otherwise, it the court could were consider only competent at the 1977 motion to transcript testimony hearing inadmissible unless under Evidence Code hearsay, suppress qualified 1291,7 Baldwin, or both v. 62 (See section stipulated by parties. 732-733, fn. 3 427]; Hewitt Cal.App.3d Cal.Rptr. [133 Court, 5 927-928 There is 493].) Cal.Rptr. nothing [85 record who testified at witnesses indicating are motion unavailable witnesses now and record suppression of the 1977 discloses transcript stipulation be received in evidence and considered trial court.8 hearing rule under forth an which hearsay 7Evidence Code section sets exception who was also a action party party be introduced testimony against former may had the testimony given right opportunity in which the former proceeding that witness is unavailable as the testimony the witness who gave provided cross-examine „ is offered. the former testimony at which proceeding witness the trial to have been considered properly the 1977 hearing 8For transcript (1) that the motion to set aside the court, to stipulate would have had the People evidence on the basis of unlawful to suppress a motion also be considered indictment be received into (2) transcript and seizure and search entered into either the People contains no indication that The record evidence. *16 18
Defendants’ that of the search and seizure issue is argument relitigation inefficient, uneconomical and is burdensome The unavailing. right to refile a dismissal on a based prosecution charges following magistrate’s determination that a search and seizure was unlawful antedated the enactment of Penal Code section 1538.5. v. 41 (See People Belknap, supra, 1030, cited; Prewitt, at and cases there p. supra, Cal.2d at 339-340.) When Penal Code 1538.5 section was enacted this pp. into subdivision of the section as one procedure incorporated (j) part of the overall that neither the accused nor the legislative plan prosecution in a case should from be further the search felony precluded litigating Witkin, and seizure issue the determination of the (See magistrate. 71A, 71D, 71E, 71F, Cal. Evidence ed. 1977 to ch. (2d II) §§ supp. 20-21, 28-29, the 37-43.) If holds the accused to answer magistrate pp. and, therefore, court, there will be an information filed in the superior either the on the magistrate’s party aggrieved by ruling suppression Code, motion is entitled to a de novo in the court. (Pen. hearing superior 1538.5, If subds. the motion to (i) § (j).) magistrate grants not accused is held answer so there will be no suppress court, in refile seek an superior People’s right proceedings is utilized indictment as a means for the search and seizure relitigating To this end issue. subdivision that “the at the (j) expressly provides ruling shall be (See prior binding any subsequent proceeding.” fn. ante.)
If the court restricted its consideration evidence properly to that its that Gilboe did not appearing consent, grand jury transcript, finding its conclusion that a search warrant was and its necessary conclusion that there was an unlawful search and seizure all are and, indeed, evidence to the unsupported To contrary with, based on the evidence in the there was begin grand jury transcript, On the the record contrary, shows stipulation. affirmatively throughout the district the court attorney attempted persuade question (See ante.) unlawful search and seizure was not issue. also fn. properly 9The assertion that the trial court opinion based these conclusions on concurring of the 1977 transcript suppression hearing the record and is unsupported statements of the contrary express court before and at the time it announced shortly It “/ its conclusions. said: don’t have so I don’t know Preliminary Hearing Transcript, (See . ante.) what was to there. . .” . fn. Further: “. . and in reading testified the Grand Indictment I transcript Jury can’t find that there was valid procedures, consent, from It would seem me testimony there was invasion of given. rights defendant, Gilboe, to the Fourth and Fifth The [|] Amendments. Mr. should pursuant on, been advised of what was I have and as understand it going transcript from advised, he was never indictment at least of what was proceedings, happening clearly, time, (Italics added.) was he nor with search warrant.” presented particular *17 at all. The that all the no search or seizure evidence is linens by police the linen the Travel-All and the shed were taken taken from hampers, Biernat, of were offi Mr. Perez and Mr. neither whom police and sei cers. The unreasonable searches provisions prohibiting and California zures in both federal Constitutions apply only and not that of individuals. conduct of the its government agents, private McKinnon, 899, 897, 7 Cal.3d 911-912 500 P.2d v. Cal.Rptr. (People [103 v. Court 70 Cal.2d 128-129 (Smith), see 1097]; [74 People 294, 449 P.2d There is no evidence in the 230].) grand jury Cal.Rptr. either Biernat or Perez were as agents acting transcript $6,000 worth of Environmentals’ linens retrieving government indicated, far in Gilboe’s So as is were possession. acting improperly behalf of Environmentals whose contract with Gilboe contained a on Environmentals’ to enter the provision specifically authorizing employees hours of normal business for the during premises Holiday Lodge purpose linen. Environmentals’ The evidence recovering only grand jury involvement is that the arrested transcript police police Sahagun Gilboe Perez in and assisted Biernat and Environmentals’ recovering linens. in the there is no evidence whatever grand jury transcript
Secondly, Gilboe did not consent to return could be based that which a finding Biernat and linens as Environmentals’ open gate requested been Perez to retrieve the linens. Biernat and Having caught right permit a on his middle of large storing premises quantity unloading have, it is linens he was not authorized Environmentals’ certainly consent to retrieval of the linen that Gilboe would incredible Environmentals’ representatives. and seizure
Even were there evidence of a search governmental Gilboe, the court’s conclusion that evidence of nonconsent on the part that Environmen- a search warrant was based on its conclusion required known this situation for a number of tals had all about days of unau- is true that Environmentals ill-founded. It Sahagun suspected linens, Gilboe was involved until thorized but it did not know dealing linens Perez observed the unauthorized to Gilboe Mr. Sahagun delivering were “seized.” There was 5 before the linens on January immediately a was in Environmentals’ linen cause to believe felony progress; probable linen was still in a linen unloaded and was still truck part being A search to the truck in front next Holiday Lodge. hamper to a lawful search and seizure absolute is not an warrant prerequisite action, and a such immediate circumstances where place require exigent 20 be warrantless search under circumstances of less yard may subject are than to authorize a warrantless search of
demanding urgency required house, Dumas, office or similar structure. v. (See Cal.3d Westmoreland, 882-883 512 P.2d 1208]; Cal.Rptr. [109 32, 554].) Cal.Rptr. [129 *18 even if somehow it could be concluded that there was Finally, unlawful shed, search and seizure with in the linen there respect would still be sufficient untainted evidence disclosed grand jury of cause. From Mr. transcript support grand jury’s finding probable chronic and the activities of Mr. Dickson on Sahagun’s shortages 29, 28 December and of unauthorized Sahagun justifiably suspected in linens. Mr. Gilboe and the were not on dealing his Holiday Lodge 5, on route and he was unauthorized to deliver linens to Mr. January Gilboe or on that date. Nevertheless he and Gilboe were Holiday Lodge seen at least one of linen from eyewitness large unloading quantity Environmentals’ truck into it into the Travel-All hampers putting inside the None of this evidence was in tainted yard. any way by any addition, unlawful search and seizure. In some of the linens being unloaded from Environmentals’ truck Gilboe and were still Sahagun in a next to the truck outside and bore hamper Holiday Lodge Environmental’ or mark name. This evidence was in registered plain and there be no unlawful or seizure as could search to it. v. sight (People Block, 6 Cal.3d 243 All this evidence was more 281].) Cal.Rptr. [103 than sufficient to warrant a reasonable and belief that Gilboe and strong had the offenses committed to have been committed Sahagun alleged course, 5. The seizure on search and would have January January whatever on the evidence of the 28 events December and 29 bearing on the basis of which Mr. in count I with Sahagun charged grand theft.
Prosecutorial Delay The critical issues under this head relate to the court’s propriety defendants an camera in thereafter granting procedures However, there are several that should employed. preliminary problems be mentioned. The first is whether set a motion to aside the indictment 995 under Penal Code section is an vehicle for appropriate raising issue of We have concluded it is not. prejudicial prosecutorial delay. However, as we shall is of no in this .explain, problem consequence case.
21 be set indictment must that an 995 Penal Code section provides found, endorsed, prescribed “1. it is not Where presented aside: reasonable without has been indicted 2. the defendant That this code. [¶] does delay cause.” Since prosecutorial prejudicial proof probable aside indictment either of the not establish setting grounds Court, 28 v. (see Penal Code section Superior Penney specified to that a motion 162]), pursuant Cal.Rptr. [105 Cal.App.3d It is now in issue.10 delay section prosecutorial place inappropriate make established, however, that an accused nonstatutory may well on the or indictment aside information ground motion set pretrial with which both in connection prosecutorial prejudicial evidence. (See, are entitled e.g., accused present prosecution 496-497; v. Court, Jones Cal.3d at v. pp. Scherling Superior supra, Court, Court, 736; 3 Cal.3d at Penney supra, p. supra, Superior 28 made the motion 944.) originally Although p. *19 995, Code section on Penal court was based trial ultimately exclusively into the the issue of delay injected proceeding, prosecutorial we treat the in the the issue. litigation Accordingly, People acquiesced raised the issue of motion below having prejudicial prosecu- properly torial delay. are in a section of defendants’
Two other issues raised preliminary to Penal Code that brief charges reinstituting pursuant asserting “[i]n must be refiled without unreasonable section delay, 1538.5(j), charges a One be utilized to harass criminal defendant.” the section cannot to reinstitute criminal made that of the is right argument People 1538.5, Penal Code section subdivision should be under (j) proceedings 732, 859], 2 735 10We note the case of v. which People Wright, Cal.Rptr. Cal.App.3d [82 if all to to indicate that of the facts establish appears necessary prejudicial prosecutorial were a aside at motion set an developed hearing, delay preliminary information raise Penal 995 be used to the issue of under Code section might appropriately prejudicial committed,” accused would not have been thus because the “legally prosecutorial aside an information in Penal Code of the for setting specified one establishing grounds for, its theoretical assuming We are that suggestion, accuracy, section 995. troubled by it would be were tried at preliminary hearing, unlikely unless issue deliberately into evidence all the evidence have would have introduced they might the People or the absence of to the defendant. the delay prejudice with respect justification circumstances, be to present would the afforded opportunity those when People Under their evidence? A 995 motion is not intended to hearing; section result an evidentiary the court’s consideration is restricted generally evidence contained preliminary, (Kusano), (See v. Court transcript. Superior hearing transcript grand jury People view, is an 585.) 276 In our procedure evidentiary at Cal.App.2d p. preferable supra, to dismiss on the ground prejudicial prosecutorial a motion nonstatutory 493, Court, 597, 22 Cal.3d (See, v. 496-497 Cal.Rptr. delay. e.g., Scherling Superior [149 Court, 10]; 736 478 P.2d 219]; 585 P.2d Jones v. 3 Cal.3d Cal.Rptr. Superior [91 Court, 944.) v. 28 at p. Penney Superior supra, Cal.App.3d 22
construed to be conditioned on the People’s reinstituting proceedings within a reasonable time. defendants’ is Again, premise faulty.
The to reinstitute criminal right People proceedings a dismissal from determination that following stemming magistrate’s the evidence resulted from an unlawful search and seizure is not derived 1538.5, Penal Code from section subdivision As (j). previously explained, of the antedated the enactment of Penal Code section right People 1538.5 v. (see at and cases People Belknap, supra, p. Prewitt, cited; there v. 52 Cal.2d at and when 339-340) People supra, pp. Penal Code section 1538.5 was enacted this recognized right People into subdivision of the section as a simply incorporated (j) procedural device to insure that the were not bound the determination of a People as to the of a search and seizure without an magistrate legality to further is, the matter. The opportunity litigate important point however, construction is statutory unneces- urged entirely The to reinstitute criminal sary. right dismissal of a following complaint magistrate subject limitation reinstitution of proceedings may deprive accused of the trial or the due to a fair right trial. speedy process right Court, (Bellizzi v. 38, 42, 2; Cal.3d at fn. see supra, pp. 1032.) Belknap, supra, Cal.App.3d p. *20 are Defendants correct in that the to asserting right People reinstitute criminal is to the further limitation that proceedings subject the accused not be harassed reinstitution of may criminal repeated Uhlemann, on the same v. (See 9 charges. People supra, 669; Godlewski, Cal.3d at v. 22 683; Cal.2d at p. People supra, p. People Podesto, 62 However, v. at 721.) counsel supra, Cal.App.3d p. although for defendant Gilboe made a number of statements about speculative Environmentals, reinstituted as a result of from being charges pressure is no there substantial evidence of such harassment of prosecutorial bench, defendants in the trial case at court did not to purport base its order the motion to set aside the indictment on that granting remand, On defendants of harassment ground. may litigate question to set aside the indictment on that by moving ground.
We turn to the issues. principal
Whether in this case be classified as prosecutorial delay or there is no as to the precomplaint postcomplaint dispute applicable law. the accused’s to trial Postcomplaint delay implicates right speedy I, 15 under article section of the California Constitution v. (Scherling
23 Hannon, Court, 504; v. 19 22 at Cal.3d Cal.3d p. People Superior supra, 885, 588, 564 P.2d 1203]), whereas 608 delay precomplaint Cal.Rptr. [138 v. to due law the accused’s Superior right process (Scherling implicates However, of whether Court, 22 at 505). Cal.3d “regardless p. supra, a to claim is based on due defendant’s process analysis right speedy i.e., statute, same, the test is trial not defined any prejudice must be from defendant against justification delay weighed resulting Court, omitted; fn. see v. for the supra, People Superior delay.” (Scherling 129, 549 Bellizzi v. 8, 1225]; 18 P.2d 17 Cal.3d v. Cal.Rptr. Bradford, [130 Court, 42; 3 Court, at v. 12 Cal.3d Jones Superior supra, p. Superior supra, Court, at 1; v. at fn. Cal.3d supra, Cal.App.3d Penney Superior p. 952.) p. of their as to the merits
The positions respective parties argue defendants from the for delay delay, prejudice justification We do the trial court’s determination. not reach propriety for, as we shall because of the substance of these explain, arguments, there was followed evidence erroneous competent virtually procedures court, the trial defendants presented prejudice remand, fundamental to fair trial. On were of basic deprived rights will have an litigate question parties opportunity prejudicial on its merits Numerous cases proper proceedings. prosecutorial delay discuss the factors relevant weighing justification prosecutorial it effects of such against prejudicial delay, unnecessary the trial (See, for us to discuss those factors for the court. guidance e.g., Court, 505-506; v. Cal.3d at Bellizzi v. pp. Scherling Superior supra, Court, Archerd, 38; v. 3 Cal.3d 12 Cal.3d at Superior supra, p. Court, 421];
639-641 477 P.2d Penney supra, Cal.Rptr. [91 952-955.) pp. court’s determination us the trial that the On record before *21 the the from the to defendants delay outweighed prosecutorial prejudice erroneous. no therefor clearly Virtually justification prosecution’s to either defendant was of presented any prejudice proof competent declaration, a executed but Gilboe court. Counsel for defendant the trial than more substance was no its entire vague, general conclusoiy some unstated number of unidentified statements the effect revealed had whom interviews witnesses “highly exculpatoiy testimony” to be unavailable” and Gilboe to defendant favorable “reported- “appear that “certain leads” are out court’s evidentiary jurisdiction,” ly nature, in were office, “no counsel’s longer exculpatory by pursued of a result circumstantial available” changes occurring during “[a]s months,” last and that counsel was informed and believed “that certain evidence available to the defendants has been formerly destroyed which would have been in nature. . . .” These exculpatory vague assertions did not inform the of court the nature of evidence any witnesses, of the “unavailable” destroyed, nature identity of what been, their would have when unavailable, became or testimony what they efforts were made the defendants to locate them or adduce by equivalent evidence; nor did disclose facts testimony any indicating these witnesses or this evidence would have been had available criminal is, been reinstituted within a short time—that that the loss of evidence and of witnesses caused unavailability by prosecutorial Thus, the declaration of counsel was delay. entirely inadequate support a conclusion that defendants were substantially prejudiced by contrast, declarations District delay. By prosecutorial Deputy Pike and Mr. Biemat set in forth some detail their efforts to Attorney evidence, additional taken the matter to the garner steps present and some of the reasons for the in so grand jury delay doing.
It is stated the trial readily that the apparent, expressly judge, court’s conclusion that to the defendants prejudice outweighed justifica- for tion was based on the “offers of made counsel for proof’ As we defendant Gilboe in camera shall both hearing. explain, for in camera granting request procedure but, thereafter followed erroneous, were event, in any competent fact was at the in camera any Counsel proof presented hearing. defendant Gilboe made statements, numerous but he was not sworn as a did witness and not fact. Motions be decided on testify may basis factual affidavits or declarations under (See penalty perjury. Proc., However, Code Civ. 2009.) §§ the absence of stipulation, without counsel even unsworn certainly opposing being present, statements, counsel, even when made do constitute competent will of facts that an order proof support prosecution. terminating felony In interest crime balancing public prosecuting against rights an accused the context of the trial court exercises prosecutorial delay, “ ” Court, ‘a delicate judgment.’ (Penney supra, In 954.) delicate the basis of counsel’s making p. judgment “offers of trial court its discretion. abused proof,” We come at last of the court’s propriety granting *22 for an thereafter, defendants’ in camera request hearing having it was concluded to treat the information improper unnecessary confidential, received as to decide the matter without proceeding to received in camera or the the information affording disclosing People the the an to of the People opportunity question explore accuracy or its or lack of or information offer argue significance significance erred; evidence. In each these the trial court the rebuttal of respects, were of fundamental to a fair trial. The People deprived rights resulting order must be reversed. to case a
It is decide in this whether court has the inherent unnecessary a an to in camera the other power grant litigant hearing, excluding litigant for and receive evidence substantive an issue party, purposes If of a court has such inherent its litigation.11 dispositive power, a of invocation would and its surely compelling showing necessity require would be to be sound discretion exercise judicial required supported by as based on exercise obliterates recognition power virtually and fundamental included in our one all of the basic to rights party fair to be all of a trial: the right present during important stages concept to hear and see of right testimony proceedings, tangible evidence, test the truth and of to accuracy testimony by right cross-examination, evidence, rebuttal to right present right The defendants made be heard argument.12 meaningful showing need an in camera the case at bench. In for any compelling hearing to “relate camera effect hearing you requesting prejudicial that has been incurred us the sole [prosecutorial delay],” upon reason for the of an in “I camera was: am given necessity highly court, reluctant, I in fact refuse to do it in for the obvious reason open that the the civil is . . defendant . involved in this corporate litigation] [in call Rutkowsky, Cal.App.3d 11Defendants our attention [126 104], in which the court examined number of “in camera.” jurors Cal.Rptr. prospective or failed to is that in the appreciate What defendants have either failed recognize and their were not parties “in in Rutkowsky, attorneys so-called camera” proceedings courtroom; held outside the merely the examination presence excluded from 1073, 1074.) (53 pp. the other prospective jurors. 915 and that Evidence Code sections is called to the fact Our attention also under certain circumstances when (d) hearings for in camera provide subdivision or informer or other a trade secret identity to disclose is claimed not privilege an informer and other identity With respect official information. confidential information, the court is to “make is upheld, required the privilege official if confidential is bringing proceeding to the public entity or of fact adverse order finding such to which the information privileged the proceeding law issue in upon any required Code, in camera (a).) We also observe that these (Evid. statutory § subd. material.” in most cases will items of evidence which relate to the production specific not be dispositive litigation. of no “statutory were the People deprived defendants assert 12Incredibly, it to cite We deem unnecessary the in camera right proceeding. constitutional” in a criminal proposition or constitutional provision statutory enumerated in text. have the rights prosecution *23 26 . . .” There is on witnesses . the
deeply. pressure being put Manifestly, discretion, had, if trial court abused its it an in camera any granting the of the and to in the trial of hearing abrogating People right participate on the issue of the basis of that of “need.” prejudice showing On defendants for the time first that the court have appeal, urge might an their for in camera for the properly granted purpose request hearing the of Gilboe’s work to preserving confidentiality attorney’s product, avoid “the revealed,” information could be and potential privileged to from “the 995 prevent as a prosecution utilizing hearing discovery in order to learn tool defendant’s trial It would be strategy.” inappro- on for us to to answer the whether priate appeal attempt question all of these asserted bases have been to sufficient newly might support an in camera It is the rule that granting hearing. general not raised in the trial court will not be issues considered for the first time Court, v. (See on Lemelle appeal. Superior Cal.App.3d [143 450], and cases there cited.) rule is Cal.Rptr. Application general here, for immediate is whether the appropriate particularly question court its trial abused discretion defendants’ for an in granting request it camera had the to do It so. would be ludicrous hearing, assuming power to review an abuse exercise of discretion based on attempt the trial contentions court did not There consider. likelihood these remand, on will arise for after the trial court made and questions decision, its announced of the in camera transcript proceeding district and included in the record on supplied prepared, attorney The information been made can there be no appeal. having public, further need for real or imagined.13 confidentiality, not asserted
Although separately trial court People, its error in compounded in camera when, original granting hearing its realization there notwithstanding was no during need for legitimate information preserving confidentiality it, the court nevertheless to make imparted decision, its proceeded on camera, based “offers received in without expressly proof’ their content to the disclosing People affording the truth and made, of the statements challenge opportunity accuracy evidence, rebuttal present engage meaningful argument. 13With that the respect notion should be to utilize permitted we tool” to learn the defendants’ trial think it hearing “discovery strategy, appropriate out to set motion aside indictment on the basis of point prejudicial motion, was defendants’ had the burden of prosecutorial proof Court, (See 953.) issue Penney prejudice. supra, p. *24 the
Motion Record Augment 16, 1978, October same On the the brief was day appellant’s closing filed, defendant Gilboe filed written record on request augment with of the 1977 partial transcripts appeal reporter’s suppression hearing court Nos. 30510and (cases that we 30511) take municipal request notice of those actions. that we more could judicial Feeling knowledge- on these rule in connection with our decision on the merits of ably requests we reserved Inasmuch a the for appeal, ruling. augmentation request made not until after filed, all briefs on had been and in appeal our if view of conclusion that the trial court considered the evidence received at the 1977 it so erred in the motion suppression hearing doing, Prewitt, record on is denied. (Cf. augment appeal supra, Cal.2d Inasmuch as the 339-340.) were pp. partial transcripts lodged with clerk of the court at the time the request augmentation filed, shall remain with the clerk of this lodged pending finality thereafter to be returned the clerk to counsel for defendant opinion, by Gilboe. fact
The that the same criminal were virtually charges prosecuted 30510 and defendants in 1977in criminal actions Nos. 30511 and the against facts various set forth in in those cases opinion and their eventual fact disposition, including magistrate found Gilboe had consented to the search and seizure alleged and concluded that was an seizure, there unlawful search were admitted in the documents filed them in the trial court and are confirmed in their briefs on We therefore find it appeal. to take notice of the existence those unnecessary judicial proceedings, Gilboe that we defendant do so is denied on that basis. request
Disposition order The indictment is reversed and aside the case is setting remanded trial for further In view court of the fact proceedings. at the who on the motion was judge presided hearing exposed the ex factual statements parte presentation argument motion, to the vital factual issue relating presented by terminate motion to on the subsequent basis of prosecution shall be tried another prosecutorial prejudicial judge.
Gardner, J.,P. concurred.
MORRIS, J. —I concur in the judgment.
I that the 1977 order the evidence and the agree *25 suppressing resulting dismissal did not prior preliminary hearing preclude refiling and that at the is not ruling charges, prior suppression hearing in binding any subsequent proceeding.
I also that the in followed in camera agree procedures hearing denied the one the most fundamental essential a fair rights trial: be all of the right present during important stages The trial court stated that “the factor proceedings. specifically controlling in the case In the denial of the of the delay.” my opinion, right in the trial of the issue of participate prejudicial prosecutorial vitiated the entire reversal order proceeding, requires aside the indictment. setting
Therefore, I do not join about the majority’s speculations legality of the search and the for possible justification without a proceeding search warrant.
The motion before the trial court to the search and seizure pertaining issue was a motion to dismiss to Penal Code section on the pursuant that the evidence submitted to the ground was grand jury incompetent evidence on that the 1977 the evidence was theoiy ruling suppressing in all We have held that it No binding was not. subsequent proceedings. motion to evidence to Penal Code section 1538.5 was suppress pursuant case, made this and the of the 1977 hearing transcript suppression not before the trial court and is not before this court. properly search, for the lawfulness of the
As basis discussing majority the trial court made assumes that an that there was independent finding search based on the unlawful This is an solely grand jury transcript. unwarranted it is unclear whether the trial assumption. Although judge the lawfulness the search or on the ruling competency it evidence before the is clear that he considered evidence grand jury, at as demonstrated his produced hearing, concluding statement, obtained, a search warrant had been there is no reason “[I]f there wasn’t evidence to sustain this matter over why enough binding Court at the time Carroll dismissed it.” Carroll Judge Judge the 1977 the 1977 Since order evidence is presided hearing. suppressing was not proceeding transcript binding such evidence court, before part upon findings predicated properly Under basis to the dismissal. be used as an cannot support independent circumstances, of the search can about these legality speculations serve good purpose. for motion to dismiss survives
If the case prejudicial any subsequent of the search be on the lawfulness the evidence may delay, prosecutorial 1538.5. under Penal Code section in a motion fully presented was denied A February rehearing petition Court were denied for a hearing by Supreme petitions respondents’ *26 Newman, J., that the Mosk, J., were of the March 1979. opinion should be granted. petitions