People v. Berumen

Opinion

STEPHENS, J.

By information, defendant was charged with a violation of Health and Safety Code section 11500 (possession of heroin). A prior conviction of the same offense was also alleged. Defendant pleaded not guilty and denied the prior conviction.

On October 24, 1967, outside the presence of prospective jurors, defendant admitted the prior conviction. The jury was then impaneled. Again outside the presence of the jury, defendant moved to suppress the evidence. Testimony was taken, and the motion was argued and denied. The case was then tried. The jury became hopelessly deadlocked, and a mistrial was declared.

On January 3, 1968, the case was again called for trial. Defendant was represented by the same private counsel as at the first trial. Prior to the calling of a jury panel, defendant moved to suppress the evidence, pursuant to Penal Code section 1538.5. The court denied the motion without taking testimony, because it was not timely according to the provisions of the statute. Defendant’s motion to dismiss the cause was denied. There is a dispute as to whether defendant then admitted the prior conviction.

After a jury trial, defendant was found guilty as charged. A motion for a new trial was denied. Defendant’s motion to strike the prior conviction was denied without prejudice. Narcotic addiction proceedings were filed against defendant, and she was ordered committed to the California Rehabilitation Center.

Defendant raises three issues on her appeal from the order denying her motion for a new trial: (1) the conduct of her defense counsel and the trial court reduced defendant’s trial to a sham and a farce; (2) to apply Penal Code section 1538.5 in a case where the first trial was held before its enactment is to make it an unconstitutional ex post facto law; (3) the trial court erred in finding that defendant had suffered a prior conviction under Health and Safety Code section 11500.

On November 8, 1967, after the conclusion of the first trial and before

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the commencement of the second trial, Penal Code section 1538.5 became law. Subdivision (m) of section 1538.5 provides in part: “The proceedings provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered in evidence against him.” Therefore, when the trial court denied defendant’s motion without taking testimony, she was precluded from raising the issues of probable cause for her arrest and the legality of the ensuing search. At the time of trial, she was limited to the defenses of lack of knowledge, and dominion and control. Defendant argues that her attorney had adequate opportunity to give timely notice pursuant to section 1538.5, and his failure to do so deprived her of the effective aid of counsel and reduced her trial to a sham and a farce. Defendant relies upon