People v. Caserta

California Court of Appeal Jan 18, 1971 No. Crim. 4413Published

Before: Brown (Gerald)

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Holding. The court held that the People may not appeal a dismissal under Penal Code section 1385 when that dismissal is based on a suppression order and was entered upon the application of the prosecuting attorney.

Issues

Whether the People may appeal a dismissal under Penal Code section 1385 when the dismissal was granted upon the application of the prosecuting attorney.
Whether findings in a suppression motion by one defendant are binding on a co-defendant who was not a party to the motion.
Whether a decision in a co-defendant's appeal constitutes law of the case for a defendant who was not a party to that appeal.

Disposition. dismissed

Quotations verified verbatim against the opinion

“We hold only the People may not initiate an appellate procedure by asking the court to dismiss under section 1385 and then appeal from the order they requested.”

“The exception contained in subdivision (7) of section 1238 must be strictly construed and may not be extended to provide appellate review to the People when the dismissal is entered on the application of the prosecuting attorney.”

Opinion

BROWN (Gerald), P. J.

The People appeal an order dismissing their action against Daniel Phillip Caserta under Penal Code section 1385 after the court sustained Caserta’s motion to suppress evidence (Pen. Code, § 1538.5).

Daniel and his wife, Sharon Ann Caserta, were jointly charged by information with possessing marijuana (Health & Saf. Code, § 11530), possessing marijuana for sale (Health & Saf. Code, § 11530.5), maintaining a place for sale of marijuana (Health & Saf. Code, § 11557) and possessing restricted dangerous drugs for sale (Health & Saf. Code, § 11911). Daniel and Sharon both successfully moved to set aside the information. The People appealed and this court reversed the order setting aside the information, in an unpublished decision (4 Crim. No. 3507).

Sharon moved to suppress evidence claiming an illegal search (Pen. Code, § 1538.5) and her motion was denied. Apparently Daniel had not been apprehended following reversal of the order setting aside the information and he was not a party to Sharon’s suppression motion. Sharon was convicted and appealed, raising the search and seizure question.

The authorities apparently apprehended Daniel and he filed his separate motion to suppress evidence. On the day before Daniel’s motion was heard, Division II of this court affirmed Sharon’s conviction.

Daniel submitted his motion to suppress on the transcript of the preliminary hearing and the transcript of the hearing on Sharon’s motion to suppress. The court granted Daniel’s motion and dismissed the action on motion of the deputy district attorney as authorized by Penal Code section 1385.

The merits of the court’s granting Daniel’s motion to suppress and dismissing the action are not before us. The People merely state:

“The facts which gave rise to the criminal action and to the ‘probable cause’ to arrest Daniel Caserta are fully set forth in the Sharon Ann Ca

[486]

serta opinion and since the

identical

facts are here present, Appellant adopts the Argument set forth in the Opinion to support its contention that the motion, on the merits, was improperly granted.”

People v. Caserta

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