*1 Dist., Sept. AO21494. First [No. Div. One. 1983.] PEOPLE, Petitioner,
THE COUNTY, THE SUPERIOR OF COURT SANTA CLARA Respondent; BROTHERTON, ROBERT F. Real Party Interest.
Counsel Thibodeaux, Himmelsbach, V. Deputy
Leo District Attorney, Joseph District for Petitioner. Attorney,
No appearance Respondent. Portman, Defender, Elrick, Public Sheldon B. Deputy Public Stephen Defender, for Real in Interest. Party
Opinion Code, (Pen. NEWSOM, of mandate seek writ The People § J. (o))1 to set aside the Santa Clara Court2 County Superior compelling noted, Penal Code. 1Unless references are to the California otherwise all 22, 1983, arose in the Sixth February Court as it 2The was filed with on March 1983. Appellate District. It to this and refilled was transferred district Brotherton’s motion its order of real January granting party evidence. Real (burglary), allegedly with a violation *3 31, 2, 1982, court superior committed 1982. On May August respondent statements, admissions, from real on all and confessions party, suppressed that were the of an into his residence and they illegal entry result grounds hence of the relief from this court his arrest. When illegal People sought 1538.5, (§ (o)), the denied as there- summarily untimely; petition after the case real motion of the against was dismissed party to section 1385. pursuant filed a new and court People identical complaint municipal
(§ 1387), and real was held to answer. He moved to court, the evidence in the the were barred that superior contending People 1538.5, by section (d) subdivision from evidence introducing any suppressed. real motion and the instant superior granted party’s followed. 1538.5, (d) contend that section subdivision does bar renewed have litigation issues when initiated a second felony to section 1387. prosecution Alternatively, pursuant I, 28, (d) contend that the of article section subdivision passage the California Constitution any statutory exclusionary (Prop. abrogated 2, rule embodied in section as it existed on August 1982, the date of the first suppression ruling.
As amended effective 1538.5 August “If search or provides: seizure motion is granted pursuant proceed- section, authorized ings by this or evidence shall not be ad- property missible the movant trial or other unless further pro- section, 1238, authorized ceedings or Section by Section Section 1466 are utilized Petitioner contends that the words by “any people.”3 1387, which, trial or other must be hearing” construed light as relevant to this allows the to initiate a second petition, felony when a case been once under section 1385.4 prosecution has dismissed amendment, 3Prior to its the subdivision made of section 871.5. no mention 4Section 1387 entirety: terminating pursuant reads in its “An order an action to this 859b, 861, 871, 995, chapter, or prosecution or is a bar to for the same Section felony it together felony offense if is a or charged it is a misdemeanor with a and the action 859b, 861, 871, 995, been previously pursuant has terminated or chapter, to this or Section cases, felony or if it is a charged together felony, except misdemeanor not with a in those or those where a felony, cases misdemeanor with a where to the dismissal of the judge magistrate or misdemeanor finds that substantial new by through evidence has been prosecution discovered which would not have been known
Thus, court, that a un argues petitioner suppression ruling superior writ, challenged by within controlling appeal criminal in which it occurred. While particular recognizing usual, that are effect to statutes give ‘according required “[w]e them’ ...” ordinary import language framing (Moyer employed 222, v. Workmen’s Bd. 10 Cal.3d Comp. Appeals 1224]), 514 P.2d follow the ‘“. . . asks us to settled petitioner prin of a statute should not be given ciple interpretation language a literal if which so would result in absurd doing consequences did not intend. . . v. Barksdale 8 Cal.3d from Bruce quoting Gregory Cal.2d 673-674
A strict (d), of subdivision would render section reading petitioner argues, 1387 under some circumstances. As ob- meaningless correctly petitioner serves a defendant 1538.5 motion and files both a Penal Code section “[i]f motion, a Penal Code section the in which the motions are heard 995 order could or take to refile effectively grant away right People’s pursuant Penal Code section 1387.” a handful
Only (d); of cases have addressed section none of them have discussed its to section 1387. relationship for be found in v.
Support petitioner’s position may Gephart (1979) There, 93 the Court of Cal.App.3d 989 Cal.Rptr. Appeal [156 489]. held that the Siskiyou Court did not err when it determined County Superior it was not bound order of the Court County Stanislaus prior Superior a motion to the same evidence. And in v. Williams granting (filed 89 three months Cal.App.3d prior 892] to Gephart, supra), was not to introduction prohibit held into evidence of a in an earlier revolver a robbery despite prosecution, ruling the same in a misdemeanor case. suppression involving weapon court, however, A different result was suggested by Belknap which addressed Cal.App.3d of whether or not subdivision of 1538.5 barred question (j) relitigation of evidence a fresh com- question upon suppression diligence the exercise of due prior at or to the time of termination of the action. “However, 859b, 861, 871, previous or pursuant if termination was to Section order terminating an action is not a bar to if either: “(a) why days Good preliminary cause is shown examination was not held within 60 arraignment from the date of plea. “(b) pursuant granted present insanity The motion to Section because of represent the defendant rather a lack of counsel after the defendant elected to himself being represented by than appointed counsel.” “If the prop- in relevant time, part: At that subdivision (j) provided plaint. and the by complaint initiated offense relates to a or evidence erty or evidence of the property the return or suppression motion for defendant’s to answer is held the defendant and if hearing granted, at the preliminary shall hearing at the ruling preliminary hearing, at the preliminary and the court unless, notice to the upon the people binding upon an infor- filing was held hearing in which preliminary mation, hearing request within 10 days preliminary people had the defendant . . .’’In Belknap, court a . special superior offense, answer possession but held to on a discharged marijuana been evidence, of a consisting quantity for sale. Certain of amphetamines at prelimi- ordered suppressed had been marijuana, amphetamines of the ruling de novo review did not seek timely nary hearing. people and filed the information moved to dismiss court but instead superior held the prior Belknap new both offenses. complaint charging of subdivi- reading to be binding, noting suppression (d). sion would conflict with subdivision (j) Three of Division found binding
A order was prior (1979) 100 Cal.App.3d this court in v. Zimmerman There, preliminary evidence suppressed 188]. *5 Costa County in in a Contra Santa Clara was used County Clara County the Santa revocation the fact that probation hearing, despite refiled, neither appealed, had been had dismissed and charges court read The Zimmerman (§ nor an indictment. sought (j).) and, (d) relying in with subdivision (j) conjunction 473], re v. Belleci 24 598 Cal.3d 879 no mention of makes versed modification order. probation Williams, Gephart, supra, or supra. after it two months v. Belled our Court was decided Supreme been in a in Belled had
denied in The defendant hearing Gephart. for sale of phen of information with two unrelated counts single possession motion, the evi the trial court suppressed cyclidine. Following timely information; did not seek dence on the second count of the Subsequently, to the count was dismissed. review and hence defendant’s ob Over the to the count. remaining pleaded guilty on the dis the evidence set forth not jection, presentence report it, that count, recommending pro but drew adverse inferences from missed defendant, appealed. be to state prison, bation denied. The sentenced within the Court, a “hearing” as sentencing viewing so, the court fol In (d) doing reversed. of subdivision “First, statute, the broad goal observing: lowed the of the meaning” “plain an orderly of the in section 1538.5 was provide enacting 286
unified procedure for of making challenges admission pretrial evidence on the that it of ground was the an search unconstitutional product seizure and obtaining review of the of the prompt appellate rulings lower courts on (See (1965- such challenges. Assem. Interim Com. Rep. No. Seizure, Search 13-22, (1967 to Assem. J. pp. Appen. Sess.); Reg. [citations].) It in no that way frustrates purpose provide of a corollary successful motion to shall be to bar the from thereafter or, introducing evidence either at the trial if the illegal convicted, defendant is at his On the would sentencing hearing. it contrary, effectively if, nullify statutory intent the defendant secured a order such evidence and suppressing failed to seek appellate review, the were nevertheless to use that allowed same evidence him in proceedings: although legislation procedur nature, inal its elaborate mechanism if the obviously would superfluous (Belleci, result of it were such a invoking victory.” Pyrrhic supra, Cal.3d 884-885.)
Belled, Williams, makes no notably, mention of su- Gephart, supra, And, pra. as not “cases are there- authority considered propositions in” (Metcalf Los County Cal.2d Angeles Cal.Rptr. 645]), we need not read Belled as did broadly as the court Zimmerman, and are free to reconsider our earlier decision in Belknap, supra. history section 1538.5 and settled construc- principles us, however,
tion persuade (in that our earlier reading Belknap) is Belled accurate. traced the of subdivision some history detail: “The first version became section legislation that 1538.5 Assembly (1965 Bill No. Sess.), introduced Reg. by then-Assembly- *6 man The bill Deukmejian. in relevant that ‘If the provided part motion [to restored, suppress] granted, shall be unless property subject otherwise lawful detention, and it shall not be in evidence admissible against movant at trial.’ any Bill No. was not enacted in ses- Assembly sion, and the matter Interim was referred to the on Assembly Committee Criminal Procedure for study.
“At the next of the session similar substantially proposal was introduced as Bill No. oth- Senate then-Senator by Deukmejian 19, In (Jan. ers. its original (c) form of section 1538.5 included a sentence identical to that from No. above Bill quoted Assembly 1651, with the addition of the clause ‘unless further authorized proceedings ’ by law are utilized was On March the sentence by people. amended to substitute ‘the evidence’ ‘it.’ In re- for the word a substantial organization of the on were statute 5 the two the sentence July parts defendant was placed the directive to return the property separated: at the evidence use of (e), against in a new subdivision prohibition was the latter provision the same time (d): became new subdivision at trial motion is read, granted, or seizure ‘If a search reworded to slightly trial movant at be admissible against or evidence shall not property by are utilized this section by further authorized unless proceedings people.’ On sub July in normal fashion.
“The amendment continued process 1238’; July the words ‘or Section division amended to add authorized it was amended to add to the proceedings ‘pursuant add ‘or 1466’; was amended to and ‘or and on 26 it July section’ Section 885-886, 4.) fn. (Belleci, 24 Cal.3d supra, other hearing.’” court’s in Bel- twice since this Section 1538.5 has been amended Zimmerman, made in the has been change and once since no yet knap, trial or other “shall not be the movant admissible language to return the (e) property ...” continues its directive hearing. Subdivision to the defendant. the courts have
“It
that after
rule of construction
well-recognized
word,
and the leg
construed
any particular
expression,
con
exact words in the same
islature
undertakes to use these
subsequently
nection,
that it used them
precise
is almost irresistible
presumption
(City
the courts.”
and technical sense which had been
them
placed upon
305];
and see
Beach v.
3 Cal.2d
Long
Payne
191 [44
re Jeanice D. (1980)
In
28 Cal.3d
Moreover,
reasonably
language
suscep
it is axiomatic that statutory
more favor
the construction
tible
different
must
interpretations
given
Belleci,
886.)
24 Cal.3d
supra,
able to
defendant.
here,
where,
fails
pur
We therefore hold that
as
the prosecution
court’s order granting
sue available
remedies following superior
appellate
evidence,
(d) will
preclude
a motion to
.
in the same
filing
a subsequent
issues
relitigation
limit our hold
to section 1387. We
of the identical
county
charges pursuant
*7
case,
concerning
appli
no
to the facts of this
ing
express
opinion
circumstances.
different factual and
procedural
subdivision
to
cability
Williams, supra.)5
v.
(Cf.
v.
People Gephart, supra; People
confronted,
suppres
at a
problems
example, with witness
5We note that a
for
course,
may, of
hearing
remedy
holding.
under our
sion
is
without
triggering the rule
suppression motion without
prior
dismiss the case
to a
on the
(d).
announced in subdivision
There
for
remains
discussion
contention
petitioner’s
passage by
I,
electorate of
article
section
abrogated
rule
exclusionary
formerly
(d).
embodied
subdivision We
need and
decide
do not
is
whether
contention
correct. Since real
petitioner’s
is
to have
committed
alleged
burglary May
Proposition
8 is
to this case.
v. Smith
Racanelli, P.
concurred.
HOLMDAHL,
dissent.
cited
Court of
As
majority,
Appeal
J. I
decisions
evenly
related
before us are about
divided.
question
Court in
v.
Supreme
Belleci
Petitioner’s Court was denied application Richardson, J., November 1983. was of the that the application should be granted.