People v. Anderson

Opinion

FUKUTO, J.

The People appeal from an order setting aside the information charging respondent with possession of a concealable firearm by a felon and possession for sale of marijuana. (Pen. Code, § 12021, subd. (a)); Health & Saf. Code, § 11359.) It is contended: “I. In a motion under Penal Code section 995, it is error to find that evidence was seized in violation of the Fourth Amendment where no motion to suppress evidence pursuant to Penal Code section 1538.5 was made at the preliminary hear

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ing. II. The analysis used by the court below renders the recent amendment to Penal Code section 1538.5, subdivision (i), meaningless and useless.”

1

The testimony at the preliminary hearing established that on September 20, 1987, Los Angeles Police Officer Jerry Smith went to 8416 Topanga Canyon Boulevard in response to a radio call. He saw respondent coming out of a motor home at that location. Officer Smith entered the motor home at that location without a search warrant and without respondent’s consent. At that point, respondent’s counsel objected “to going any further,” stating that the officer “testified he did not have permission to enter the motor home.” In response to the prosecution’s assertion that respondent’s counsel stated he would not be making a motion to suppress under Penal Code section 1538.5, respondent’s counsel admitted he “didn’t mean to make a formal motion to suppress.” After being advised by the magistrate that he had to make the motion at the preliminary hearing or preserve it for the superior court, respondent’s counsel asked the magistrate “on its own” to inquire about the legality of the arrest. When advised by the magistrate that he would not do so, respondent’s counsel stated he was “refraining from making such a motion because [he] wanted to preserve some rights in the future.” The court then allowed Officer Smith to testify regarding his observations after he entered the motor home. The motor home contained marijuana, packaging materials and a loaded concealable firearm.

Before January 1, 1987, a defendant who made a suppression motion at the preliminary hearing was entitled to a de novo hearing in the superior court. Effective January 1, 1987, Penal Code section 1538.5, subdivision (i) was rewritten to eliminate a defendant’s right to a second full hearing. A defendant is now entitled to only one full hearing. When a motion is made at the preliminary hearing, a defendant is limited in the superior court to the transcript of the preliminary hearing (and to evidence which could not reasonably have been presented at the preliminary hearing). The magistrate’s factual findings are binding on the superior court except as to matters affected by evidence presented in the superior court.