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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Jenaro Soto MEDINA, Defendant and Appellant.

Cr. 19304.

Decided: August 23, 1971

Howard E. Beckler, Hollywood, for defendant and appellant. Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and John R. Evans, Deputy Atty. Gen., for plaintiff and respondent.

Defendant Medina was charged by information with unlawful possession on May 26, 1969 of herion for sale, a felony, in violation of Health & Saf. Code § 11500.5. One prior felony was charged. He pled ‘not guilty’ and denied the prior. Before trial, he moved to suppress evidence against him under Penal Cede § 1538.5 and the motion was denied. He petitioned for a writ of mandate or prohibition under Penal Code § 1538.5(i) and the same was denied by Division Five of this court. He then petitioned our Supreme Court for a hearing which likewise was denied. Thereafter he waived a jury, had a court trial at which considerable evidence was received, was found guilty, the prior being found true, and defendant was sentenced to state prison. He appeals from the judgment.

Appellant's sole contention on this appeal is that narcotics admitted into evidence against him resulted from an unlawful search and seizure. A threshold question arises as to whether he may raise such issue on this appeal.

We have reviewed appellant's petition for the writ, which petition was denied. In that petition, appellant made the same arguments made in his present appeal, a fact he conceded in oral argument before us. It is obvious from the record that the petition for the writ was denied on its merits, and not on procedural grounds, even though the order states merely ‘Denied.’ Thus, it was timely filed and in the correct tribunal, was verified, and a reporter's transcript of the Section 1538.5 proceedings was lodged with this court. It would be ridiculous under such circumstances to permit appellant to argue the matter twice in this court, requesting, in effect, that we disagree with our brothers in Division Five and hold, contrary to their view, that insufficient probable cause was shown to justify the trial court's denial of his motion to suppress. We do not permit it.

In Messner v. Industrial Accident Comm'n, 216 Cal.App.2d 536, 541–542, 30 Cal.Rptr. 898, 901 (1963) it was stated: ‘The question arises as to whether a denial of the former writ of review, without opinion, operated as res judicata to a subsequent writ. The general rule is stated in Confidential, Inc. v. Superior Court, 157 Cal.App.2d 75, 320 P.2d 546 where it was held that denial without opinion of an application for a prerogative writ (except habeas corpus) is not res judicata of the legal issues presented by the application unless the sole possible ground of denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits.’ (Emphasis added. Also see: Funeral Directors Assn. of Los Angeles and Southern California v. Bd. of Funeral Dirs., 22 Cal.2d 104, 110, 136 P.2d 785 [1943] and McDonough v. Garrison, 68 Cal.App.2d 318, 325, 156 P.2d 983 [1945].)

It is true that applications in pending cases for interlocutory relief through mandate and prohibition often are said to invoke the court's discretionary powers. (See: 3 Witkin, Cal.Procedure (1954) 2472–2473, ‘Extraordinary Writs' § 9, and cases cited.) Thus, availability of another adequate remedy (Barnard v. Municipal Court, 142 Cal.App.2d 324, 298 P.2d 679 [1956]) with the right to appeal an adverse result may lead a court to deny a petition for a writ. But a court's discretion is not unbridled and an applicant may be entitled to a writ's issuance as a matter of law. (May v. Board of Directors, 34 Cal.2d 125, 133–134, 208 P.2d 661 [1949].)

We conclude that a petition seeking a writ for review of an order denying a motion to suppress under Penal Code § 1538.5 is not an ordinary form of discretionary proceeding. Rather, it is a purely statutory method of reviewing the denial of a motion to suppress made prior to trial. Such a motion is only one in limine, being made prior to trial for the purpose of learning if certain evidence is to be excluded or admitted. (People v. Leighter, 15 Cal.App.3d 389, 395, 93 Cal.Rptr. 136 [1971].) Ordinarily, such a ruling on evidence may be reviewed only on an appeal from a final judgment but not by way of a writ. Under the statute this court is not granted any discretion to refuse consideration of the merits of a petition if it is timely and properly filed and contains an adequate report of the proceedings to be reviewed. For the foregoing reasons, we cannot assume that our fellow judges denied appellant's petition on any discretionary ground; rather, we presume they denied the petition on its merits.

It is well settled that the denial of a petition for such a writ on its merits is res judicata. Price v. Sixth District Agricultural Assn., 201 Cal. 502, 515, 258 P. 287 (1927) is, perhaps, the leading California case on the point. (Also see: Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control, 55 Cal.2d 728, 733, 13 Cal.Rptr. 104, 361 p.2d 712 [1961].)

Accordingly, we hold that the appellant has had his day in court on the issue he now attempts to raise by this appeal. He cannot have, so to speak, two bites at the cherry.

The judgment is affirmed.

DUNN, Associate Justice.

FILES, P. J., and KINGSLEY, J., concur.

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