People v. Howard

Opinion

BEACH, J.

The People appeal, pursuant to Penal Code section 1238, subdivision (a)(7), from an order of the superior court dismissing a pending criminal prosecution pursuant to Penal Code section 1385 after that court granted the defendant’s motion to suppress on the ground that the evidence was the product of an unlawful entry to serve a search warrant for failure to comply with Penal Code section 1531.

The facts present a case of first impression. It appears that a search warrant was issued and served, as a result of which various items of evidence were seized upon the basis of which the People filed two complaints against defendant Wayne Howard.

In case No. A-321131 defendant was charged with the commission on October 1, 1975, of one count of receiving stolen property (Pen. Code, § 496) and three counts of possessing forged notes (Pen. Code, § 475). At his preliminary hearing on October 17, 1975, his motion to quash the search warrant was denied and he was held to answer. It was not urged that the officers who executed the search warrant failed to comply with Penal Code section 1531. An information was filed October 31, 1975.

In the meantime, in case No. A-321426 appellant was charged with the commission on October 1, 1975, of three counts of receiving stolen property (Pen. Code, § 496). At his preliminary hearing on October 28, 1975, his motion to quash the search warrant was denied, but his motion to suppress the evidence seized in the search executed pursuant thereto was granted for the failure of the officers who executed the search warrant to comply with Penal Code section 1531. He was not held to answer on the charges.

[1022]

On November 25, 1975, in case number Á-321131 the superior court granted defendant’s motion to suppress the evidence seized in the execution of the search warrant upon the ground that the superior court was bound by the ruling of the municipal court in case number A-321426, that the officers who executed the search warrant failed to comply with Penal Code section 1531. At the November 25th hearing it was stipulated that the items referred to in all counts charged in the information were “the subject of the search warrant in case number 321426 in that all items in both cases were the subject of the same search warrant.” The defense introduced a certified copy of the municipal court docket sheet in case number A-321426 showing that the case was dismissed and failing to show any refiling or other action therein by the prosecution. Also at the hearing in case number A-321131 defense counsel argued only that the ruling of the municipal court judge in case number A-321426 was controlling. The court agreed with that conclusion on the theory that the situation was “analogous to the principals of Res Judicada [ízc] in civil actions ....”