Opinion
KINGSLEY, J.— These two petitions raise important questions as to the procedure by which a defendant may obtain a pretrial appellate [733]review of a trial court’s ruling on a motion under subdivision (i) of Penal Code section 1538.5.1
A defendant in a felony case, seeking to avoid the use of evidence obtained by an unreasonable search and seizure, has two avenues of attack. He may move to set aside an indictment or information under section 995 of the Penal Code, or he may move to suppress the evidence by a motion under section 1538.5 of the Penal Code (Witkin, Cal. Evidence (2d ed. 1977 supp.) § 71B, p. 23). Or he may, as here, use both methods of attack. If he elects to proceed under section 995 and his motion is denied, he may seek immediate appellate review by a petition for a writ of prohibition filed in the appellate court within 15 days after his motion is denied. (Pen. Code, § 999a.) If he elects to proceed under section 1538.5, he may seek appellate review under subdivision (i) of section Í 538.5 if he files his petition within the 30-day period prescribed by that subdivision. However, a defendant need not resort to immediate appellate review by writ, but may go to trial and, if convicted, raise the denial of his sections 995 or 1538.5 motion on appeal from the judgment of conviction.
Since the motions herein involved were denied on April 27, 1977, and the petitions were filed in this court on May 24, 1977, the time requirements of section 1538.5 were met. However, the record discloses a problem as to another procedural requirement for appellate review by writ. Section 1510 of the Penal Code provides as follows: “The denial of a motion made pursuant to Section 995 or 1538.5 may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant’s arraignment on the complaint if a misdemeanor, or 60 days following defendant’s arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.” The record before us shows that, at the time of arraignment, on August 19, 1976, the following occurred:
[734]“Defendant Fabric ant: For the record, I would like to reserve a 995 and 1538.5.
“The Court: It will be reserved for you.
“Mr. Plotin: That will be noticed also on behalf of Mr. Smith.
“The Court: Well, we require those to be in writing. A 1538, as I indicated previously, can be noticed for the date of trial. Any other motions can be noticed prior to the date of trial, with ten days notice to the People.” Motions under section 995 followed. Those motions ultimately were denied on January 14, 1977, and a petition under section 999a was denied by, Division Three of this court on February 2, 1977, with an order reading as follows:
“The petition is denied without prejudice to a motion by petitioner pursuant to Penal Code section 1538.5.” Thereafter, for the first time, written motions under section 1538.5 were filed. They ultimately were denied on April 27, 1977.
Clearly, the proceedings at the time of arraignment were insufficient to constitute the “motion” required by the statute. Those proceedings did no more than to advise the trial court and the People that petitioners had under consideration the making of such a motion. Petitioners did not indicate by anything that they said that such a motion would, in fact, be made. At that stage, not only did petitioners have a choice of tactics in deciding which avenue of attack they might make, but they had not, necessarily, even decided that any attack on evidence would be made. A motion is an application to the court for an order. (Code Civ. Proc., § 1003.) The applicant must, in some way, communicate to the court what order is desired and upon what grounds. (See People v. Sirhan (1972) 7 Cal.3d 710, 740 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v. De Santiago (1969) 71 Cal.2d 18, 22 [76 Cal.Rptr. 809, 453 P.2d 353]; Witkin, Cal. Crim. Procedure (1963) § 22.) The cryptic statement made by the defendants on August 19, 1976, did not tell the court that they would make a motion to suppress, or what they would want suppressed, or the grounds of suppression.2 It follows that [735]petitioners are not entitled to pretrial appellate review of the trial court’s ruling, and that the petitions must be dismissed.
The petitions are dismissed.
Files, P. J., concurred.
(i) 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 seizure which shall be heard prior to trial and at least 10 days after notice to the people unless the people are willing to waive a portion of this time. The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his motion at the special hearing.”
This opinion does not rest upon the absence of a written notice. (See the discussion of that subject in People v. Lewis (1977) 71 Cal.App.3d 817 [139 Cal.Rptr. 673], and in People v. Manning (1973) 33 Cal.App.3d 586 [109 Cal.Rptr. 531].)