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Court of Appeal, Fourth District, Division 2, California.

Kurt Francis SCHLICK, Petitioner, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent. PEOPLE of the State of California, Real Party in Interest.

No. E010428.

Decided: February 24, 1992

Howard M. Van Elgort, Joshua Tree, for petitioner. No appearance by respondent. Dennis Kottmeier, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., for real party in interest.


Petitioner Kurt Francis Schlick, defendant below, seeks a writ of mandate from this court compelling the lower court to grant his motion to exclude evidence pursuant to Penal Code section 1538.5, subdivision (d).1  We have determined that the motion should have been granted upon the authority of People v. Superior Court (Brotherton) (1983) 147 Cal.App.3d 281, 195 Cal.Rptr. 96 (hereinafter Brotherton ), and accordingly grant the relief requested.


Although the record is somewhat sparse, there is no dispute over the facts which we find dispositive.

On March 5, 1990, an information was filed in the superior court charging petitioner with three drug-related offenses.   On June 6, 1990, petitioner's motion to suppress under section 1538.5 was granted.2  The People did not seek review of this ruling by a higher court.

Several months later, however, the People moved for reconsideration of the order suppressing evidence.   This strategy was prompted by the recent promulgation of appellate authority favorable to the People's position concerning the search, People v. Cleland (1990) 225 Cal.App.3d 388, 275 Cal.Rptr. 126.   However, the motion was denied, and the matter was dismissed.   The minute order reflects that the dismissal was due to insufficient evidence, and also noted the People's intent to refile the charges.3

The identical charges were contained in a second complaint filed shortly thereafter, and petitioner was held to answer.   Following his arraignment in the superior court on October 10, 1991, on an information again including only the same charges previously dismissed, petitioner made the motion to exclude evidence which is the subject of this petition.

The sole basis for this motion was that the People were bound by the adverse finding and order suppressing evidence in the first case.   The trial court denied the motion, but we agree with petitioner's contention that the People's failure to pursue their statutory remedies following the order suppressing evidence in the first case bars the use of that evidence here.


 Critical to our discussion is subdivision (d) of section 1538.5, which provides that “[i]f a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, Section 1238, or Section 1466 are utilized by the people.”  (Emphasis supplied.)   As it is conceded that no such further proceedings occurred, our focus is on the meaning of “any trial or other hearing.” 4

Our purpose here is not to retrace the steps taken by other courts, but simply to choose between the opposing constructions enunciated in Brotherton, supra, 147 Cal.App.3d 281, 195 Cal.Rptr. 96, and the case upon which the People rely, People v. Methey (1991) 227 Cal.App.3d 349, 277 Cal.Rptr. 777.

Brotherton is essentially procedurally identical to this case.5  The court recognized authority holding that a suppression order made in one county is not binding in a second prosecution in another county.  (See People v. Gephart (1979) 93 Cal.App.3d 989, 998–1000, 156 Cal.Rptr. 489.)   However, the court also noted that it had ruled evidence inadmissible in a second related prosecution after a motion to suppress had been granted in an earlier matter in People v. Belknap (1974) 41 Cal.App.3d 1019, 1031, 116 Cal.Rptr. 664, with specific reference to subdivisions (d) and (j) of section 1538.5.   The court also observed that at least two other recent cases had similarly barred the later use of suppressed evidence (People v. Belleci (1979) 24 Cal.3d 879, 884–885, 157 Cal.Rptr. 503, 598 P.2d 473;  People v. Zimmerman (1979) 100 Cal.App.3d 673, 676, 161 Cal.Rptr. 188).   Although section 1538.5 had been more than once amended since the publication of the decisions, the provisions of subdivision (d) had not been altered;  the court accordingly relied on the rule that where the Legislature does not respond to judicial construction of a statute by changing it, it is to be presumed that subsequent re-enactments of the statute adopt the judicial construction placed on its terms.  (See Long Beach v. Payne (1935) 3 Cal.2d 184, 191, 44 P.2d 305.)

Furthermore, in rejecting the contention that “any trial or other hearing” referred only to subsequent proceedings within the same prosecution, the court also observed that “statutory language reasonably susceptible of different interpretations must be given the construction more favorable to the defendant.”  (Brotherton, supra, 147 Cal.App.3d at p. 287, 195 Cal.Rptr. 96;  People v. Belleci, supra, 24 Cal.3d at p. 886, 157 Cal.Rptr. 503, 598 P.2d 473.)   Accordingly, the evidence suppressed in the first action was held inadmissible in the second.

The reasoning and approach of Brotherton was flatly rejected in People v. Methey, supra, 227 Cal.App.3d 349, 277 Cal.Rptr. 777.   The court observed that under section 1538.5, subdivision (j), if a motion to suppress is granted at the preliminary hearing, the People are free to refile the charges and the ruling is not entitled to res judicata or collateral estoppel effect.6  It then found “no reason” to apply collateral estoppel or res judicata to dismissals resulting from a suppression motion in the superior court, as such a ruling clearly had no such effect if made by the magistrate.   It therefore construed “any trial or other hearing” in subdivision (d) of section 1538.5 to apply only to further hearings in the same prosecution, and not in separate proceedings resulting from a re-filing of charges.

 To begin with, we must express our agreement with the practical logic applied by the Methey court.   We are no more able than the members of that court to conceive of any reason in logic why the People should be bound by a suppression ruling made in the superior court, if they do not pursue the statutory remedies for review, where they are not similarly bound by a ruling made at the preliminary hearing.   We also agree that the appellate remedy may be unappetizing if the People realistically recognize that the record would not support reversal;  in such a case, if other evidence exists which would justify the seizure, the only available cure would be to re-file and present a better case.7

 However, we find ourselves bound by the plain language of the statute, and therefore agree with Brotherton that the evidence may not be introduced in a second prosecution.8  In our view, “any trial or other hearing” means any trial or other hearing, whether in the original or a subsequent prosecution.   Although it would not be useful to quote dictionary definitions in their entirety 9 , we point out that in Webster's Third New International Dictionary (1964) page 97, the definitions of the adjective “any” are replete with words and phrases such as “every,” “one indifferently out of more than two,” “all,” “one or some indiscriminately of whatever kind” and “without restriction or limitation of choice.”

The unqualified “any” is inconsistent with a limitation to further proceedings in the same prosecution.   Had the Legislature wished to do so, it could have specified that suppressed evidence was not admissible at “the trial or other hearing”;  such language would be far more readily susceptible to the narrow construction adopted in Methey.   However, in our view “any trial or other hearing” must include all subsequent proceedings in which the defendant is prosecuted for the same crime, and a limited construction is not justified by the plain language of the statute.  (See People v. Belleci, supra, 24 Cal.3d at p. 884, 157 Cal.Rptr. 503, 598 P.2d 473;  Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   The result, while quixotic and arguably illogical, cannot be described as so absurd that we may exercise our ingenuity to avoid it.  (Cf. In re Eric J. (1979) 25 Cal.3d 522, 537, 159 Cal.Rptr. 317, 601 P.2d 549.)   We conclude that the People are bound by the prior ruling and their failure to seek the authorized means of review, and that petitioner's motion should have been granted.

We notified real party that we were considering the issuance of a peremptory writ in the first instance, and offered the opportunity to file opposition.   We have considered the petition, the record, and the opposition received, and have concluded that further proceedings would cause unnecessary delay and add nothing to the presentation made.   Accordingly, we issue the writ as requested.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.)

Let a peremptory writ of mandate issue directing the San Bernardino County Superior Court to vacate its order denying petitioner's motion to suppress evidence, and to enter a new order granting said motion.   The stay of proceedings previously ordered shall be dissolved upon the trial court's compliance with this order.


1.   All further statutory references are to the Penal Code.

2.   It is asserted that this motion only addressed evidence seized during one search by law enforcement personnel, and did not challenge the seizure of additional evidence during a search of other property.   While the record does not affirmatively demonstrate what evidence was involved, there is no dispute that petitioner's motion in the instant case was directed only at that evidence suppressed in the first case.

3.   In their filed opposition here, the People explain the decision to dismiss by asserting that People v. Methey, infra, “freed the prosecution from the restraint which had been previously imposed upon it by the case of People v. Superior Court (Brotherton) [supra ].”  While it is true that the People will apparently suffer no net detriment as a result of our decision, in that they would have been forced to proceed without the suppressed evidence in the first case, it is not always wise to assume that new authority will be accepted in place of the old.   The People's decision here did result in one dismissal, creating the risk that the prosecution could be barred by a second, involuntary dismissal.

4.   Under section 1538.5, subdivision (j), “[i]f defendant's motion is granted at a special hearing in the superior court, the people ․ may seek appellate review as provided in subdivision (o), unless the court prior to the time such review is sought has dismissed the case pursuant to Section 1385.”   Subdivision (o) provides for review by way of a petition for extraordinary relief.   If the action is dismissed under section 1385, the dismissal is appealable under section 1238, subdivision (a)(7).

5.   It differs immaterially in that the People did seek review of the ruling in the first case by petition for writ of mandate, but the petition was summarily denied as untimely and the case subsequently was dismissed.

6.   In People v. Sahagun (1979) 89 Cal.App.3d 1, 16–18, 152 Cal.Rptr. 233, it was noted that determinations made by the magistrate are generally not binding in subsequent prosecutions, although they may be relevant to show the intent to harass a defendant.   Petitioner here argues that the element of harassment, and unjust delay, distinguishes the case at bar from Methey.   As we decline to follow Methey, we need not address these contentions.

7.   This tactic is, of course, available where the evidence at a preliminary hearing is ruled insufficient;  the People are free to re-file the charges one time.  (Pen.Code, § 1387.)   The same limitation would apply to new filings following the suppression of evidence and dismissal in the superior court, thus providing protection against the harassment of multiple prosecutions.On the other hand, a prosecutor faced with witness problems or other difficulties at a suppression hearing in the superior court may seek a dismissal before a ruling is made, and thereby avoid the bar created by section 1538.5, subdivision (d).  (See Brotherton, 147 Cal.App.3d at p. 287, fn. 5, 195 Cal.Rptr. 96.)

8.   We encourage the Legislature to reconsider the disparate treatment of this statutory scheme.

9.   The definitions of “any” in the dictionary which we cite below are comparable, for impenetrability, with the worst that the Legislature could do in the California codes.

McKINSTER, Associate Justice.

RAMIREZ, P.J., and DABNEY, J., concur.

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