Moreno v. Superior Court

California Court of Appeal May 15, 1978 No. Civ. 3887Published

Before: Franson

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Holding. The superior court erred in denying the petitioner a hearing on the merits of his motion to suppress evidence because the petitioner had not yet received a hearing on the merits of his initial motion.

Issues

Whether a criminal defendant has a right to a pretrial hearing on the validity of a search and seizure under Penal Code section 1538.5.
Whether a trial court has jurisdiction to hear a second motion to suppress when the first motion was denied for procedural reasons without a hearing on the merits.

Disposition. remanded

Quotations verified verbatim against the opinion

“We hold that the superior court erred in denying appellant a hearing on the merits of his motion to suppress evidence.”

“Since the petitioner never received a hearing on the merits of his first motion, the court had jurisdiction to entertain the second motion.”

[934]

Opinion

FRANSON, J.

Petitioner is presently awaiting trial on charges of vehicle manslaughter, failing to stop at the scene of an accident, and driving under the influence of intoxicating liquor (Pen. Code, § 192, subd. 3, Veh. Code, §§ 20001, 23101). On November 28, 1977, petitioner was arraigned in the superior court, and on December 22, after a pretrial conference, trial was set for January 3, 1978. On December 30, 1977, four days prior to the scheduled trial date, petitioner filed a motion to suppress evidence pursuant to Penal Code section 1538.5. On January 3, 1978, the trial date was vacated and a hearing on the motion to suppress was continued for personal reasons of petitioner’s trial counsel. On January 5, 1978, a second continuance was granted to allow defense counsel to attend to personal matters.

On January 12, 1978, the trial court denied petitioner’s motion because petitioner had failed to give the district attorney 10 days’ notice of the motion. After denying the motion, the trial court set the matter for trial on February 7, 1978. In setting the trial date, the court expressly stated it was not granting petitioner additional time for the purpose of filing another Penal Code section 1538.5 motion.

On January 13 petitioner renewed his motion to suppress, setting January 25 as the hearing date. On January 25 the trial court denied the motion on the ground that it had not intended its continuance to permit the petitioner to renew his motion.

On February 2 petitioner filed this proceeding, contending that the second motion to suppress, filed on January 13, 1978, was improperly denied.

Discussion

We hold that the superior court erred in denying appellant a hearing on the merits of his motion to suppress evidence.

Penal Code section 1538.5, subdivision (i) provides: “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment,

the defendant shall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or

Moreno v. Superior Court

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FRANSON, J.

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