PEOPLE v. TONEY

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Appellant, v. Roosevelt Lorenzo TONEY, Defendant and Respondent.

No. C035564.

Decided: January 30, 2002

John D. Phillips, District Attorney, Kevin A. Hicks, Deputy District Attorney, for Plaintiff and Appellant. Erlinda G. Castro, Berkeley, under appointment by the Court of Appeal, for Defendant and Respondent.

The People appeal from an order denying their Penal Code section 871.5 1 motion to reinstate a second felony complaint, which was dismissed pursuant to section 871 for insufficient evidence as a consequence of the granting of the defendant's second motion to suppress evidence.

The initial complaint charged defendant with narcotic offenses based on evidence seized in the search of his car following a traffic stop.   He was held to answer at the preliminary hearing.   His motion to suppress the evidence was granted at a special hearing in the superior court and the case was dismissed on the People's motion pursuant to section 1385.   We dismissed the People's appeal as from a nonappealable order.   The People filed a second complaint.   A second suppression motion was granted by the magistrate at the renewed preliminary hearing and the new complaint was dismissed pursuant to section 871.   The People then sought and were denied reinstatement of the second complaint pursuant to section 871.5.   This appeal followed. (§ 1238, subd. (a)(9).)

We shall conclude the People are barred from reinstatement by the provisions of section 1538.5, which provides, in relevant part, that the proceedings authorized by it and sections 871.5 and 1238 constitute the exclusive remedies prior to conviction by which to test the unreasonableness of a search or seizure. (§ 1538.5, subd. (m).)  In particular, sections 1238 and 1538.5 provide the people with two, alternative remedies in the case where a dismissal is based on the suppression of evidence at a special hearing in the superior court.   They may appeal the dismissal to the court of appeal, if entered on the court's own motion (§ 1238, subd. (a)(7)),2 or they may file a second complaint to relitigate the suppression motion if the dismissal is entered on the people's motion (§ 1538.5, subds. (j) and (p)).  The people may not seek a third remedy, reinstatement of a second complaint pursuant to section 871.5, because that remedy is limited to review of an initial complaint. (§ 1538.5, subds.(j) and (p).)

In this case the People lost their first remedy, the right to appeal the judgment of dismissal following the granting of a suppression motion at a special hearing, because the dismissal was entered pursuant to the People's motion to dismiss. (§ 1238, subd. (a)(9).)  As an alternative they filed a second complaint, which resulted in the second granting of a suppression motion at a renewed preliminary hearing, thus exhausting their remaining remedy. (§ 1538.5, subds. (j) and (p).)  Having exhausted their alternative remedies, the People are precluded from further review pursuant to section 871.5.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Stockton police seized evidence of narcotic offenses in a search of defendant's car following a stop of the vehicle for lack of license plates.   The merits of the seizure are not before us.   What is at issue is the propriety of the People's claim to a second opportunity for appellate review of a suppression motion after having failed in their effort to seek appellate review of the first suppression motion.

The initial complaint, arising from a June 12, 1998 traffic stop, was filed on June 16, 1998, case No. SC063235A.  The magistrate held the defendant to answer and the People filed an information on July 13, 1998.   At a special hearing the superior court granted defendant's motion to suppress the evidence seized from defendant's car on the ground the detention following the traffic stop was prolonged.   The court then granted the People's motion to dismiss the case in the interests of justice. (§ 1385.)   We dismissed the People's appeal from the order of dismissal because it was taken from a nonappealable order. (§ 1238, subd. (a)(7).) 3

A new complaint, the second, was filed in November 1999, case No. SF078107A, and is the subject of this appeal.   At the preliminary hearing the magistrate granted defendant's motion to suppress the evidence seized in the traffic stop, also on the ground of prolonged detention.   Finding insufficient evidence to hold defendant for trial, the magistrate dismissed the new complaint pursuant to section 871.

The People moved to reinstate the complaint pursuant to section 871.5 on the ground the magistrate erroneously granted the motion to suppress the evidence.   The trial court ruled the motion was “tantamount to filing a new complaint, tantamount to asking for a special hearing,” and barred by section 1538.5, subdivision (p), which bars the filing of a new complaint, absent new evidence, if a motion to suppress evidence in a felony matter has been granted twice.

The court denied the motion without reaching the merits of the magistrate's ruling.

This appeal ensued. (§ 1238, subd. (a)(9).)

DISCUSSION

 The People seek the reinstatement of their second felony complaint pursuant to section 871.5 following a dismissal pursuant to section 871 for insufficient evidence, as a consequence of the granting of the defendant's second motion to suppress evidence.

The availability of the section 871.5 remedy is governed by section 1538.5, which provides, as relevant here, that the proceedings authorized by it and sections 871.5 and 1238 constitute the exclusive remedies, prior to conviction, by which to test the unreasonableness of a search or seizure. (§ 1538.5, subd. (m).)

Section 871.5 4 provides that a prosecutor may move in the superior court to reinstate a complaint dismissed by the magistrate at the preliminary hearing pursuant to section 871, including a dismissal occasioned by the grant of a motion to suppress evidence.  (People v. Dethloff (1992) 9 Cal.App.4th 620, 11 Cal.Rptr.2d 814.)   The remedy is in the nature of an appeal.   (Ibid.)

While section 871.5 facially permits the review of any complaint dismissed pursuant to section 871, its application to review the dismissal of a second complaint, predicated upon the granting of a suppression motion, is barred by amendments to subdivisions (j) and (p) of section 1538.5, adopted after the enactment of section 871.5.5

Subdivision (j) of section 1538.5 provides, in pertinent part:

“(j) If the ․ evidence relates to a felony offense initiated by complaint and the defendant's motion for ․ suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint ․ after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p).  In the alternative, the people may move to reinstate the complaint ․ pursuant to Section 871.5.”  (Italics added.)

 This subdivision provides the people with two, alternative remedies when a complaint has been dismissed by the magistrate following the granting of a suppression motion at a preliminary hearing.   The people may file a “new complaint.”  “In the alternative, the people may move to reinstate the complaint ․ pursuant to Section 871.5.”   Giving “alternative” its plain meaning, subdivision (j), requires the people to choose between a “new complaint” and review of a preexisting complaint pursuant to section 871.5.  They may not do both.

The question arises whether a “new complaint” is limited to a second complaint.   That is answered by subdivision (p), which limits the choices available under subdivision (j).  In pertinent part, subdivision (p), provides:

“If a defendant's motion to ․ suppress evidence in a felony matter has been granted twice, the people may not file a new complaint ․ in order to relitigate the motion or relitigate the matter de novo at a special hearing in the superior court as otherwise provided by subdivision (j), unless the people discover additional evidence ․ not reasonably discoverable at the time of the second suppression hearing.”  (Italics added.)

This subdivision bars the filing of a “new [felony] complaint” to relitigate a suppression motion which has been granted twice.   It necessarily bars the filing of a third complaint by reason of the circumstances in which that has occurred.6  One circumstance occurs where a first complaint is dismissed by reason of a suppression motion followed by the similar dismissal of a second complaint.   Another occurs, as here, where the defendant is held to answer on the first complaint, a suppression motion is granted at a special hearing in the superior court, and a second complaint is filed and dismissed at a renewed preliminary hearing.   In either case, subdivision (p) precludes the filing of a third complaint to relitigate a suppression motion.

Since subdivision (p) bars a third complaint and is a limitation on subdivision (j), it follows that the phrase “new complaint,” as used in subdivision (j) means a second complaint.   Accordingly, the only alternatives available to the People under subdivision (j), following a dismissal predicated upon the granting of a suppression motion at a preliminary hearing, are to file a second complaint, or to seek reinstatement of an initial complaint pursuant to section 871.5.

 For these reasons section 871.5 is available only to review an initial complaint when it is dismissed following the granting of a suppression motion at a preliminary hearing.

This brings us to the circumstances of this case, a dismissal by the People at a special hearing in the superior court followed by a similar dismissal of a second complaint, each predicated upon the granting of a suppression motion.   As noted, the people may seek appellate review of the suppression motion by writ of mandate or prohibition in the court of appeal.  (See fn. 2, ante.)   If the case is dismissed, the people may obtain appellate review of a suppression motion where the action is dismissed by the court. (§ 1238, subd. (a)(7).) 7  However, “if the people dismiss the case on their own motion after the special hearing,” they are barred from an appeal but “may file a new complaint or seek an indictment ․ except as limited by subdivision (p).” (§ 1538.5, subd. (j).) 8 As noted, a “new complaint” means a second complaint by virtue of subdivision (p).

However, as noted, because of subdivision (p), subdivision (j) permits review pursuant to section 871.5 only of an initial complaint.   Accordingly, such review is barred in the case of a second complaint filed following a dismissal at a special hearing in the superior court.

The policy behind these provisions is manifest.   The people are given alternative remedies by which to challenge a dismissal resulting from the granting of a suppression motion.   They may file a new, or second, complaint and litigate the motion a second time.   Or they may litigate the suppression motion once and obtain review of an adverse decision in the court of appeal, if the case is dismissed by the court on its own motion at a special hearing in the superior court, or by way of a motion in the nature of an appeal pursuant to section 871.5, if the motion is granted at the preliminary hearing.   In either event the decision on such review is binding upon the people.9

In this case, the People's appeal to this court was dismissed for failure to secure a dismissal of the criminal action on the court's own motion.  (See fn. 2, ante.) 10  They filed a second complaint, which was dismissed pursuant to section 871 upon the granting of the defendant's second suppression motion.   Since the People failed to secure the first of their alternatives-an appeal to this court-and utilized the remaining alternative by filing a second complaint, they have exhausted their alternative remedies to relitigate or seek review of the dismissal.   That bars further review pursuant to section 871.5.

In sum, subdivision (j), authorizes an 871.5 motion only to review the dismissal of an initial complaint.   Since the People seek review of a second complaint, they have no remedy under section 871.5.

DISPOSITION

The judgment (order denying review pursuant to section 871.5) is affirmed.

I fully concur in the majority opinion.   Nevertheless, I write separately to point out that the result also is required by Penal Code section 1387.  (Further section references are to the Penal Code unless otherwise specified.)

Section 1387, subdivision (a) provides in pertinent part that an order terminating an action pursuant to section 871 “is a bar to any other prosecution for the same offense” if the offense is a felony “and the action has been previously terminated pursuant to this chapter [including section 1385, which authorizes a judge or magistrate to dismiss a criminal action upon the People's motion in furtherance of justice].”

When the first complaint charging defendant with two felonies was dismissed pursuant to section 1385, at the People's request after defendant's motion to suppress evidence was granted, that constituted a first dismissal within the meaning of section 1387.   As permitted by section 1538.5, subdivision (j), the People then filed a new complaint, charging defendant with the same felonies.1

When the second complaint was dismissed by the magistrate pursuant to section 871, after defendant's motion to suppress evidence was granted and the magistrate found the other evidence did not provide sufficient cause to believe defendant was guilty of a public offense, that constituted a second dismissal within the meaning of section 1387.

Since the complaint had been dismissed for a second time, reinstatement of the complaint pursuant to section 871.5 would constitute an “other prosecution for the same offense” within the meaning of section 1387, subdivision (a).   (Marler v. Municipal Court (1980) 110 Cal.App.3d 155, 160-161, 167 Cal.Rptr. 666.)

Accordingly, the reinstatement of a complaint that has been dismissed twice within the meaning of section 1387, subdivision (a) necessarily is not an alternative provided by sections 871.5 and 1538.5, subdivision (j) because it is precluded by section 1387, subdivision (a), which specifies that, after two such dismissals, there exists a statutory “bar to any other prosecution for the same offense,” except under circumstances not applicable to this case.

The People rely on dictum in Ramos v. Superior Court (1982) 32 Cal.3d 26, 184 Cal.Rptr. 622, 648 P.2d 589, which interpreted section 1387 to bar reinstatement of a special circumstance allegation after it had been dismissed twice, but went on to say this interpretation “does not leave the People without means to challenge a second order of a magistrate dismissing all or a portion of a complaint․ [S]ection 871.5 ․ provides the People with a specially designed procedure for challenging a magistrate's dismissal order.”  (Id. at p. 36, 184 Cal.Rptr. 622, 648 P.2d 589, fn. omitted;  see also People v. Mayo (1986) 185 Cal.App.3d 389, 394-395, 229 Cal.Rptr. 762 [relying upon dictum in Ramos v. Superior Court, supra, for the proposition that “a second dismissal may be reviewed pursuant to section 871.5, notwithstanding section 1387”].)

However, “dicta of the California Supreme Court does not control lower courts.”  (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1358, 20 Cal.Rptr.2d 515, orig. italics.)   Although it “ ‘carries persuasive weight,’ ” such dictum “ ‘should be followed [only] where it demonstrates a thorough analysis of the issue or reflects compelling logic․’ ”  (Ibid., citations omitted.)

The dictum in Ramos v. Superior Court, supra, 32 Cal.3d 26, 184 Cal.Rptr. 622, 648 P.2d 589 about then recently-enacted section 871.5 (which did not apply there because the People did not avail themselves of the remedy afforded by section 871.5) is contained in one brief sentence that is not supported by any analysis (id. at p. 36, 184 Cal.Rptr. 622, 648 P.2d 589) and, hence, does not reflect any compelling logic.   Consequently, the dictum is not controlling.  (Grange Debris Box & Wrecking Co. v. Superior Court, supra, 16 Cal.App.4th at pp. 1358-1359, 20 Cal.Rptr.2d 515.)   Since the dictum is inconsistent with the plain meaning of section 1387, the best that can be said is the Supreme Court implicitly read the later-enacted section 871.5 as superseding section 1387.   But there is nothing in the language of section 871.5 that necessarily conflicts with section 1387 or that reflects a legislative intent to supersede the two dismissal rule of section 1387.

Based on the plain meaning of the statutory scheme, including sections 871.5, 1387, subdivision (a), and 1538.5, subdivisions (j), (m), and (p), I fully concur in the majority's analysis and conclusion that the reinstatement alternative of sections 871.5 and 1538.5, subdivision (j) applies only to a first complaint.   Consequently, I agree that the trial court in this case correctly denied the People's motion to reinstate the second complaint after it was dismissed pursuant to section 871.

FOOTNOTES

1.   Undesignated statutory references are to the Penal Code, unless otherwise indicated.

2.   If the court fails to dismiss the case on its own motion, thereby giving the people a right to appeal, the people also may seek review of the suppression motion by an extraordinary writ in the court of appeal.Section 1538.5, subdivision (o) provides, in pertinent part:  “(o) Within 30 days after a defendant's motion is granted at a special hearing in the superior court in a felony case, the people may file a petition for writ of mandate or prohibition in the court of appeal, seeking appellate review of the ruling․”

3.   We take judicial notice of the appellate record in People v. Toney (May 17, 1999, C030615), the People's attempted appeal from their successful motion to dismiss San Joaquin County Superior Court Case No. SC063235A.  (Evid.Code, §§ 452, subd. (d), 459.)   We dismissed the appeal because, under section 1238, subdivision (a)(7), an order dismissing a case before trial, based upon the granting of a suppression motion at a special hearing in the superior court, may be appealed by the people only if it was “made upon the motion of the court pursuant to section 1385․” (Italics added.)   We said:  “the trial court did not dismiss the action on its own motion as provided in section 1238.   Instead, the People moved to dismiss the action, and the trial court granted the People's motion.”  (See also People v. Caserta (1971) 14 Cal.App.3d 484, 487, 92 Cal.Rptr. 382.)

4.   Section 871.5 provides, in pertinent part:“(a) When an action is dismissed by a magistrate pursuant to Section ․ 871, ․ of this code ․ the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate.”“(b) Notice of the motion shall be made to the defendant and the magistrate.   The only ground for the motion shall be that, as a matter of law, the magistrate erroneously dismissed the action․”“(c) ․ If the motion is litigated to [an adverse] decision by the prosecutor, the prosecution is prohibited from refiling the dismissed action․”

5.   Section 871.5 was enacted in 1980.  (Stats.1980, ch. 938, § 4, p. 2966.)   Section 1538.5 was enacted in 1967 to provide, in subdivision (j), that “[i]f the ․ evidence relates to a felony offense initiated by complaint and the defendant's motion for the ․ suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint․” (Stats.1967, ch. 1537, § 1, p. 3654.)   In 1982, section 1538.5 was amended to add a second sentence to this provision of subdivision (j).  “In the alternative, the people may move to reinstate the complaint ․ pursuant to Section 871.5.”  (Stats.1982, ch. 625, § 1, p. 2625.)   In 1993, section 1538.5 was amended to add subdivision (p) and to add references to it in subdivision (j).  (Stats.1993, ch. 761, § 2, p. 4252.)   The cumulative effect of these amendments is discussed in the text.In a petition for rehearing the People argued that “new complaint,” in subdivision (j), cannot mean an initial complaint by virtue of the provision of subdivision (n) “[t]hat nothing in the section ‘shall be construed as altering ․ (5) any procedure and law relating to a motion made pursuant to Section 871.5 ․’ ”   They note that People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 749, 23 Cal.Rptr.2d 733, holds that section 871.5 is applicable to review both an initial and a second complaint.The argument founders for two reasons.   First, Martinez did not concern section 1538.5.   Second, the People's construction of subdivision (n) would contradict the unambiguous limitation of subdivision (p) on the alternatives available under subdivision (j).  Since subdivision (p) was enacted in 1993 (Stats.1993, ch. 761, § 2), subsequent to the 1982 enactment of subdivision (n) (Stats.1982, ch. 625, § 1), it must prevail, as the later enactment, over an inconsistent earlier provision.  (See e.g. California Correctional Officer's Assn. v. Department of Corrections (1999) 72 Cal.App.4th 1331, 1337, 85 Cal.Rptr.2d 797.)

6.   Subdivision (j) also bars relitigation by the people of a suppression motion at a special hearing in the superior court if a defendant's suppression motion has been granted twice.  “The people may not request relitigation of the [suppression] motion at a special hearing if the defendant's motion has been granted twice.”

7.   Section 1238 provides in relevant part:  “(a) An appeal may be taken by the people from any of the following:  [¶] ․ [¶] (7) An order dismissing a case prior to trial made upon motion of the court pursuant to section 1385 whenever such order is based upon an order granting the defendant's motion to ․ suppress ․ evidence made at a special hearing as provided in this code.”

8.   In this regard, another clause of subdivision (j), provides, in pertinent part:“If the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on their own motion after the special hearing, the people may file a new complaint, ․ and the ruling at the special hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p).”

9.   Section 871.5, subdivision (c) provides, in pertinent part:“If the motion is litigated to decision by the prosecutor, the prosecution is prohibited from refiling the dismissed action, or portion thereof.”Section 1538.5, subdivision (j), provides, in pertinent part:“If the people prosecute review by appeal ․ to decision, or any review thereof, in a felony ․ case, it shall be binding upon them.”

10.   The People did not avail themselves before dismissal of the right to review the granting of the suppression motion by writ of mandate or prohibition. (§ 1538.5, subd. (o).)

1.   The alleged felonies were transporting cocaine base (Health & Saf.Code, § 11352) and possessing cocaine base for sale (Health & Saf.Code, § 11351.5).

BLEASE, J.

We concur:  SCOTLAND, P.J., and CALLAHAN, J.