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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Jose Luis Torres FLORES, Defendant and Appellant.

No. G007516.

Decided: March 27, 1990

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defenders, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Janelle B. Davis and Patti W. Ranger, Deputy Attys. Gen., for plaintiff and respondent.


Following denial of his motions to suppress evidence in both the municipal and superior court, defendant Jose Flores pleaded guilty to the transportation and possession for sale of narcotics.   He was granted probation and appeals, claiming that Penal Code section 1538.5, subdivision (i) is unconstitutional and that he was denied the right to call previously unavailable witnesses and introduce de novo evidence at the special hearing in the superior court.   We affirm the judgment.


At around 5 p.m. on June 8, 1988, uniformed police officers executed a search warrant at defendant's house.   They knocked on the front door and announced in Spanish and English their authority and purpose.   Although they saw a woman in the kitchen step back, no one came to the door.   After waiting 15 to 20 seconds, the officers opened the screen door and entered the residence.   Inside, they found heroin, cocaine, marijuana, drug paraphernalia and $3,000 in cash.   While the officers were searching the residence, defendant walked in carrying cocaine in his pockets.   He was arrested and a consensual search of his vehicle revealed seven pounds of marijuana and one pound of cocaine.

At the preliminary hearing defendant made a motion to suppress evidence seized from the car on the ground defendant did not consent to the search.   Later, he broadened the motion to include evidence seized from the residence on the ground the officers did not comply with the knock-notice requirements of Penal Code section 1531.   The enlarged motion was made after Janet Joson, a newspaper reporter who accompanied the officers on the raid, testified the police entered “very fast” after announcing themselves.   For the purposes of the suppression motion, it was stipulated that the contraband was a controlled substance.1  The suppression motion was denied and defendant was held to answer.

Defendant renewed his motion in the superior court, and indicated de novo testimony would be required.   He wanted to call three witnesses he claimed were unavailable to testify at the preliminary hearing, and to recall Joson, the newspaper reporter.   The prosecutor objected, contending the witnesses had been available, and that under the suppression statute only the prosecution may recall witnesses at the special hearing and he was not going to recall any.   After conducting an in camera hearing, the court refused to allow de novo evidence and denied the motion.2  Defendant pleaded guilty and now appeals.


 Defendant challenges the constitutionality of Penal Code section 1538.5, subdivision (i) on the ground it permits the prosecution to recall witnesses at the special hearing in the superior court while forbidding defendants the same right.   The argument is without merit.3

Under Section 1538.5, subdivision (i) a defendant is entitled to one full suppression hearing which may be made at the preliminary hearing or in the superior court.  (People v. Williams (1989) 213 Cal.App.3d 1186, 1190–1191, 262 Cal.Rptr. 303.)   If the motion is made at the preliminary hearing and it is denied, the motion may be renewed in the superior court but the evidence at that hearing “shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing.”  (Pen.Code, § 1538.5, subd. (i), emphasis added.)

 Defendant's contention that subdivision (i) fails to grant defendants the same procedural and substantive advantages accorded the prosecution is based on the incorrect notion the prosecution has an unqualified right to recall witnesses at the special hearing while the defendant has no similar right.   If that were true, we would certainly agree that subdivision (i) was constitutionally infirm for failing to provide reciprocity of remedies to defendants.  (See Wardius v. Oregon (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82;  Evans v. Superior Court (1974) 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681.)   But our duty is to interpret a statute in a manner which promotes its legislative intent (People v. Jones (1988) 46 Cal.3d 585, 599, 250 Cal.Rptr. 635, 758 P.2d 1165), and avoids “grave and doubtful constitutional questions.”  (People v. Anderson (1987) 43 Cal.3d 1104, 1146, 240 Cal.Rptr. 585, 742 P.2d 1306.)

Applying these statutory guides to the provision now before us, we conclude that the prosecution's right to recall witnesses comes into play only when the defendant is allowed to present evidence at the special hearing.   (People v. Anderson (1989) 210 Cal.App.3d 24, 28, 258 Cal.Rptr. 125.)   Such an interpretation serves to avoid any alleged constitutional infirmities and to preserve the Legislature's intent to limit the suppression motion to one hearing.   Were we to accept defendant's view, and permit both the prosecution and the defendant to recall witnesses at the special hearing for any reason, we would be recreating a system which would allow a defendant two full hearings.   Since that is precisely what the 1987 amendment to this section was designed to avoid (People v. Williams, supra, 213 Cal.App.3d at p. 1191, 262 Cal.Rptr. 303) we believe our interpretation of the statute promotes the true intent of the Legislature.4


 Defendant argues the superior court improperly denied him the right to present the testimony of three witnesses who were unavailable at the preliminary hearing.   The witnesses he sought to introduce were residents of the house who were home when the search warrant was executed.   The argument is without merit.

At the special hearing, a defendant is entitled to bring forth “evidence which could not reasonably have been presented” at the preliminary hearing.  (Pen.Code, § 1538.5, subd. (i).)  Defendant asserted he could not reasonably have presented the testimony of these witnesses because he had no reason to suspect the police had violated Penal Code section 1531 until the newspaper reporter testified the police entered the residence “very fast.”   He also pointed out he was not at home when the officers arrived, and the police report indicated the officers had complied with the law.

The superior court's finding the evidence reasonably could have been presented at the preliminary hearing must be upheld if it is supported by substantial evidence.   Here, it is undisputed the witnesses were known, available, and willing to testify on defendant's behalf.   Defendant's assertion that the evidence could not have been presented because he was surprised by the newspaper reporter's testimony is unavailing.   He could have requested a continuance to further investigate the case.  (People v. Drews (1989) 208 Cal.App.3d 1317, 1326, 256 Cal.Rptr. 846.)   By failing to take advantage of that opportunity, defendant is now estopped to claim the witnesses were unavailable.

 Next, defendant asserts he was entitled to introduce de novo evidence at the special hearing pursuant to Penal Code section 1538.5, subdivision (f), which provides a defendant may make a suppression motion at the preliminary hearing but the motion “shall be restricted to evidence sought to be introduced by the people at the preliminary hearing.”   Defendant contends that under this section any evidence not actually introduced at the preliminary hearing may be challenged with de novo evidence at the special hearing.

Defendant's argument on this point fails for several reasons.   Not only is it not necessary to actually produce in court every object referred to in testimony (People v. Perry (1969) 271 Cal.App.2d 84, 103, 76 Cal.Rptr. 725), defendant's motion to suppress was expressly directed to all of the evidence he now seeks to challenge by way of a de novo hearing.   He had his opportunity to contest the legality of the search and seizure as to this evidence, and he is not entitled to a second bite of the apple simply because the contraband was not physically brought into court.   In any event, whatever claim defendant might have had on this score was lost when defense counsel stipulated that the contraband was tested at the Orange County Crime Lab by a qualified analyst who determined that all of the evidence seized from the vehicle and the residence was a controlled substance.  (See fn. 1, ante.)   Under these facts, defendant was not entitled to a de novo hearing.

The judgment is affirmed.

I concur fully in the judgment and conclusion of my colleagues that Penal Code section 1538.5, subdivision (i) survives the attacks made by Flores.   I write separately to expand upon the reasons why this is so.

First, Flores arguably has no standing to complain about the provision allowing the prosecution to call witnesses in superior court who testified at the preliminary hearing.   The prosecution did not attempt to do so here.   “[O]ne to whom a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to ․ other situations in which its application might be unconstitutional.”   (United States v. Raines (1959) 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524;  see also Allen v. Wright (1984) 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556;  In re Kathy P. (1979) 25 Cal.3d 91, 99, 157 Cal.Rptr. 874, 599 P.2d 65;  People v. Perry (1931) 212 Cal. 186, 193, 298 P. 19.)   We need not invest court resources to redress hypothetical wrongs.

Even if we tackle the constitutional issues because of their recurring importance in criminal proceedings, Flores does not prevail.  Penal Code section 1538.5, subdivision (i) provides in relevant part:  “If the motion was made at the preliminary hearing, ․ evidence presented at the special hearing [in superior court] shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented [there], except that the people may recall witnesses who testified [there].”

The question is whether the words “except that the people may recall witnesses ․” modifies only the clause “evidence which could not reasonably have been presented ․” or also modifies the phrase “limited to the transcript of the preliminary hearing․”   In the first case, the exception would apply only when the defense was allowed to put on additional evidence.   In the second case, the exception would apply carte blanche to the general “transcript” limitation.  “It is a well established rule of statutory construction that ‘ “relative or modifying phrases are to be applied to the words immediately preceding them and are not to be construed as extending to more remote phrases” ’ [citations], ‘ “unless the context or the evident meaning of the statute requires a different construction.” ’  [Citation.]”   (Oliva v. Swoap (1976) 59 Cal.App.3d 130, 138, 130 Cal.Rptr. 411.)   Under this rule, we would conclude the prosecution's opportunity to recall witnesses arises only when the defense is allowed to expand the “record” in superior court.

Even if the “plain meaning” of the words gave the prosecution the ability to recall witnesses from the preliminary hearing—whether or not the defense was allowed to present additional witnesses pursuant to the preceding clause—we need not adhere to that meaning.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)  “Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citations.]”  (Ibid.;   see also People v. Belton (1979) 23 Cal.3d 516, 526, 153 Cal.Rptr. 195, 591 P.2d 485;  Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049;  compare People v. Cole (1982) 31 Cal.3d 568, 572, 183 Cal.Rptr. 350, 645 P.2d 1182 [ordinarily, courts will not indulge in statutory construction where the language is clear and unambiguous;  recognizes contrary rule when legislative intent would be frustrated].)

The intent of the Legislature in its 1987 amendment to Penal Code section 1538.5, subdivision (i) was to streamline suppression motion proceedings by limiting the presentation of evidence to one hearing so far as is practicable.  (See People v. Williams (1989) 213 Cal.App.3d 1186, 1191, 262 Cal.Rptr. 303.)   That intent is best served by a construction limiting the prosecution's ability to recall witnesses to cases where the defendant makes the requisite showing to permit it to put on additional evidence.

Flores also claims that Penal Code section 1538.5, subdivision (i) violates the separation of powers clause (Cal. Const., art. III, § 3) by predicating the right to a de novo hearing in superior court upon the prosecutor's approval.  (See People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   The argument is ingenuous.   This is not a statute which allows an exercise of court discretion only upon approval by the prosecutor.   (People v. Tenorio, supra, at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993;  People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 65, 113 Cal.Rptr. 21, 520 P.2d 405.)   The trial court has no discretion to allow further testimony.   The Legislature simply included an express provision that the parties may stipulate to waive the restrictive provisions of the section.   If the separation of powers clause is violated here, it is violated in every instance where the parties, with or without statutory provision, may stipulate to waive some procedure which burdens the defendant in some way.   The case law on which Flores relies does not go that far.

The statute, as we have construed it, provides fundamental fairness to both parties.   Flores has not been harmed by any procedure inherent in the statute or exercised in his case.


1.   Defense counsel stipulated:  “For the purposes of the preliminary hearing only, counsel has agreed to enter into the following stipulation:  that the contraband that was seized from the bedroom and from the car was submitted to the Orange County Crime Lab.   Steve Luber received that evidence, and he analyzed under the item that was booked as number 1, one of 2 bags, net weight 7.6 grams;  and it contained heroin.  [¶] He analyzed the item that was booked as number 12;  he found the net weight of that to be 2.11 grams;  and in his opinion that item contained cocaine.  [¶] He also analyzed item number 13, that was one of 2 bags analyzed, net weight 496.57 grams;  and that item contained cocaine.  [¶] This analyst—analysis was done 7–6–88.   He's also a qualified criminalist at the Orange County Crime Lab.  [¶] Counsel will also stipulate that the items seized marked as People's 1 and 2 is [sic ] marijuana.”

2.   Defendant does not challenge the legality of the search or seizure on appeal.

3.   The Attorney General argues that after entering a guilty plea, a defendant may not raise a constitutional issue on appeal unless he first obtains a certificate of probable cause.  (Pen.Code, § 1237.5.)   In the past we have criticized the requirement of obtaining a certificate of probable cause (People v. Everett (1986) 186 Cal.App.3d 274, 280, fn. 2, 230 Cal.Rptr. 604), but demerits of the procedure aside, a certificate of probable cause was not required here because this appeal tests the “proper procedure for relitigation of search and seizure issues at the preliminary hearing stage of the proceedings.”  (People v. Workman (1989) 209 Cal.App.3d 687, 693, 257 Cal.Rptr. 753;  see also People v. Kaanehe (1977) 19 Cal.3d 1, 8–9, 136 Cal.Rptr. 409, 559 P.2d 1028.)

4.   In his reply brief, defendant raises the additional argument that subdivision (i) violates the separation of powers doctrine since it allows the prosecution to prevent a defendant from introducing de novo testimony.   While “the Legislature may not by statute condition the exercise of judicial power on the consent of a district attorney” (Bryce v. Superior Court (1988) 205 Cal.App.3d 671, 678, 252 Cal.Rptr. 443), nothing in subdivision (i) gives the prosecution a “veto” right over defendant's right to challenge the legality of the evidence.  (People v. Anderson, supra, 210 Cal.App.3d at pp. 27–28, 258 Cal.Rptr. 125.)

SCOVILLE, Presiding Justice.

MOORE, J., concurs.