People v. Municipal Court

Opinion

WHELAN, J.

The People appeal from a judgment denying their petition for a writ of mandate sought to be directed to the Municipal Court of San Diego Judicial District (respondent court).

The real party in interest is Larry Lee Lott (Lott), defendant in a misdemeanor case in respondent court.

1

Prior to trial of that misdemeanor action, Lott made a motion under Penal Code section 1538.5 to suppress evidence, which was granted. On appeal by the People to the superior court from the order granting the motion to suppress, that order was reversed on May 16, 1969.

On July 23, 1969, when the misdemeanor case came to trial, Lott was permitted, over objection from the People, to make anew a motion under Penal Code section 1538.5 to suppress the same evidence upon the ground the search that discovered the seized evidence was unreasonable under the decision in

Chimel

v.

California,

395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], which had been decided on June 23, 1969, after the decision of the appellate department of the superior court.

An alternative writ of mandate issued from the superior court halting a ruling by the respondent court on the second motion to suppress, the decision on the merits of the case having been by stipulation submitted upon the transcript of testimony taken at the hearing on the first motion to suppress.

Thereafter the superior court denied the petition for writ of mandate. This appeal followed.

Discussion

Penal Code section 1538.5 provides in part: “(d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section,

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the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section or Section 1238 [appellate review] or Section 1466 [appeal to appellate department of the superior court] are utilized by the people.