People v. Rose

WHELAN, J.

Defendant appeals from an order granting probation following his plea of guilty to the charge of maintaining a place where narcotics are sold (Health & Saf. Code, § 11557).

Defendant did not comply with the requirements of Penal Code, section 1237.5, compliance with which is now generally

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a prerequisite to an appeal from a judgment based upon a plea of guilty.

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His appeal, however, has purportedly been taken under the provisions of section 1538.5, subdivision (m), Penal Code, which is as follows: ‘ ‘ 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 as evidence againt him. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence. ’ ’

Section 1237.5, Penal Code, was enacted in 1965; section 1538.5, in 1967. Under the procedure prescribed in section 1237.5, an appeal from a judgment based upon a plea of guilty, following a denial of a motion under section 1538.5, could have been taken without the express provision to that effect in the latter section. Since, in section 1538.5, the Legislature provided specifically for such a right of appeal, it follows that an appeal from a judgment based upon a plea of guilty following the denial of a motion under that section, for the sole purpose of testing the correctness of such denial, may be taken without regard to the provisions of section 1237.5.

We are of opinion that defendant’s appeal is fruitless for reasons we now discuss.

Defendant was charged originally in an information filed November 22, 1967 with having planted and cultivated marijuana, a violation of section 11530, Health and Safety Code, to which he pleaded not guilty. On December 27, 1967, he filed a written notice of motion for an order suppressing physical evidence which motion was heard and denied on January 5, 1968.