CROSBY, J., I dissent. As relevant here, Penal Code section 1538.5, subdivision (m) provides, “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.” (Italics added.) Seems clear enough to me. Woodford did move at some stage of the proceedings to suppress evidence; he may therefore appeal from a conviction based on a plea of guilty. Nothing in the section suggests the majority’s additional requirement that the motion be heard as well as made. And what justice could there be in a such a rule as applied to this case, where the majority concedes the municipal court erred in refusing an evidentiary hearing and the superior court incorrectly denied the motion brought under Penal Code section 995?
Moreover, it is not exactly accurate to say there was no hearing. There was no evidentiary hearing; but a hearing on offers of proof, which is essentially what took place here, is a hearing of sorts. By precluding the defense from producing evidence to support its offer, the prosecutor and the court bound themselves to defense counsel’s statement of what he would prove. And, contrary to the majority’s claim that “the transcript of Wood-ford’s preliminary examination does not show that ‘essential evidence was illegally obtained.’” we should reverse the denial of the motion on either of two related grounds.
First, for purposes of appeal, the defense “proved” the victim was discovered in a warrantless search. The rule is, “ ‘A party who has prevented proof of a fact by his erroneous objection will not be permitted to take advantage of his own wrong, and a reviewing court will assume that the fact was duly proved. [Citation.]’ (Watenpaugh v. State Teacher’s Retirement [1959] 51 Cal.2d 675, 680 [336 P.2d 165]; 6 Witkin, Cal. Procedure, [950]Appeal, § 268, pp. 4258-4259.)” (Crail v. Blakeley (1973) 8 Cal.3d 744, 755 [106 Cal.Rptr. 187, 505 P.2d 1027].) The record does not reflect that the prosecution carried its burden to justify the warrantless search; consequently, the judgments below may not stand.
Second, the motion should have been granted based on the prosecution’s acquiescence in the defense offer of proof. Woodford’s counsel described an illegal search resulting in the discovery of the victim. The prosecution did not dispute the defense offer; the deputy district attorney merely claimed he would only produce evidence of conduct predating the search. This non sequitur suggests one of two possibilities: The prosecutor either completely misunderstood the issue or inartfully attempted to articulate a theory of attenuation, i.e., that the victim’s testimony was voluntary and would have been available in any event. The prosecution always has the burden of proving the attenuation exception to the rule of exclusion, however; and, again, it failed to produce any evidence at all. Consequently, even if the majority’s unprecedented view of the appealability question is correct, we should nevertheless reverse on the merits of the “hearing” on the motion to suppress.
As the Supreme Court held in People v. Lilienthal (1978) 22 Cal.3d 891 [150 Cal.Rptr. 910, 587 P.2d 706], “subdivision (m) [of Penal Code section 1538.5] itself acknowledges the propriety of a section 995 motion to test the validity of a search or seizure.” (Id.., at p. 896, fn. omitted.) The court added, “a section 995 motion will be effective to preserve [a] Fourth Amendment issue on an appeal following a guilty plea . . . when it appears from the transcript of the preliminary hearing that essential evidence was illegally obtained.” (Id., at p. 897.) In this case there can be no doubt the victim’s testimony was “essential evidence”: Nothing else was presented at the preliminary examination. Since the prosecution did not deny it was illegally obtained and failed to prove attenuation, our decision should be obvious.
Woodford had the right, but no duty, to bring a new motion to suppress in the superior court. But, contrary to the position of the majority, he was also entitled to insist on his right to a dismissal instead. If he had lost a de novo motion to suppress in the superior court and been convicted at trial, the pretrial errors would not have been cognizable on appeal. (See, e.g., People v. Pompa-Ortiz (1980) 27 Cal.3d 519 [165 Cal.Rptr. 851, 612 P.2d 941].) Thus, twice wronged, Woodford has no remedy. Worse, from his point of view, the majority has possibly destroyed a potential bar to his prosecution by its refusal to follow the plain language of Penal Code section 1538.5, subdivision (m). With certain exceptions, second dismissals pre[951]elude further prosecution. (Pen. Code, § 1387.) Woodford was and is entitled to one of those two dismissals here.
Consequently, I would reverse. So should the majority, if for no other reason than to allow Woodford to withdraw his plea. He pleaded guilty in good faith reliance on the promise of a statute, but has fallen into the majority’s trap instead. Future defendants will, perhaps, have Woodford’s example as a warning. He had literally nothing to alert him to the danger ahead.
The majority somehow concludes I base this notion on People v. DeVaughn (1977) 18 Cal.3d 889 [135 Cal.Rptr. 786, 558 P.2d 872], where a defendant was led by a trial court to believe he could appeal a nonappealable issue after a guilty plea and consequently was permitted to withdraw his plea. DeVaughn, except for the principle involved, is beside the point. Although there is an illusory promise in this case, it was not created by the trial court but by this court’s misinterpretation of Penal Code section 1538.5, subdivision (m). Of course, there is also the question of simple fairness.
Appellant’s petition for review by the Supreme Court was denied May 1, 1986. Mosk, J., and Grodin, J., were of the opinion that the petition should be granted.