People v. Superior Court

Opinion

LILLIE, J.

This matter is before us on the People’s petition for writ of mandate directing respondent court to annul its order of April 6, 1970, granting defendants’ motion under section 1538.5, Penal Code, and suppressing evidence in a pending criminal prosecution against defendants Green and Ramsey. We issued ah alternative writ commanding respondent court to annul its order or to show cause why it had not done so. The order not having been annulled on the return day, the cause was heard and argued. We conclude that respondent court had no jurisdiction to rehear the motion under section 1538.5, Penal Code, prior to trial and that the writ should issue.

Defendants, charged with violations of sections 11530.5 and 11531, Health and Safety Code, moved under section 1538.5, Penal Code, to suppress certain evidence on the ground that it was recovered as the result of an illegal entry, search and seizure. The motion was heard on October 8, 1969, before Judge Howard H. Schmidt. At the outset Richard T. Sykes, who represented both defendants, advised the court that while there might be a possible conflict of interests between defendants at trial, “there is no conflict through the 1538.5 hearing,” and that he had discussed the matter with both defendants. The judge concurred with counsel and at length

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explained to defendants the problem of possible conflict of interests arising out of a single representation so they could not raise the issue at a later time; each defendant, when asked, responded that he understood it.

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Only then did the hearing on the motion proceed. Six witnesses were called, three for defendants; the motion was argued and denied. On November 6, 1969, within 30 days of the denial, defendants filed in this court petition for writ of prohibition (2d Civ. 35528) whereby they sought reversal of the order denying their motion. On December 23, 1969, the petition was denied without opinion.

Meanwhile defendants retained new and separate counsel and on April 1, 1970, before Judge Schmidt, moved to renew their motion under section 1538.5, Penal Code. Over the People’s objection that the court had no jurisdiction to rehear the matter, the motion to renew was granted and the cause transferred to Judge Warren L. Ettinger. On April 3, 1970, defendants sought to have the motion under section 1538.5, Penal Code, heard a second time; again the People objected but Judge Ettinger took “the position inasmuch as new counsel have come into the case—there had been representations at least by counsel that there was by virtue of a conflict inadequate representation—the court giving the benefit of the doubt to the defendants is exercising its discretion and conducting the hearing.” The second hearing was had April 6, 1970, upon which the motion was submitted on the transcript of the testimony taken at the first hearing supplemented by additional testimony of Agent Feldman which was substantially the same as that given by him at the first hearing. Judge Ettinger granted the motion and suppressed “all physical evidence.”