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

PEOPLE of the State of California, Plaintiff and Appellant, v. Donald E. SHEAHAN and Mickey A. Sheahan, Defendant and Respondents.

Cr. 7212.

Decided: June 27, 1969

Thomas C. Lynch, Atty, Gen., Robert R. Granucci, George R. Nock, Deputy Attys. Gen., San Francisco, for appellant. Richard A. Hodge, San Francisco, for respondent Donald S. Sheahan (under appointment of Court of Appeal). Edward T. Mancuso, Public Defender, Charles G. Warner, Deputy Public Defender, City and County of San Francisco, San Francisco, for respondent Mickey Sheahan.

Respondents Donald E. Sheahan and Mickey A. Sheahan were charged by information with possession of marijuana (violation of Health & Safety Code, s 11530). A motion to set aside the information under Penal Code section 995 was denied and pleas of not guilty were entered. Thereafter, on December 12, 1967, the court granted a defense motion, made under Penal Code section 1538.5, to suppress evidence seized by police officers after they entered a closed room in respondents' apartment upon smelling marijuana.

The court immediately dismissed the action ‘pursuant to section 1385 of the Penal Code.’ The judge failed to comply with that enactment's requirement that ‘The reasons of the dismissal must be set forth in an order entered upon the minutes.’ Nevertheless we accept the parties' assumption that the order of dismissal was entered on the theory that the evidence which the court had just suppressed was essential to the prosecution's case and that hence no prosecution would be possible and ‘in furtherance of justice,’ the proceedings should be terminated.

The prosecution did not seek a writ to review the order suppressing evidence as allowed by Penal Code section 1538.5, subdivision (o).[FN1] Instead the People purportedly appeal both from the order suppressing evidence under section 1538.5 and from the concurrent order of dismissal under section 1385. The Attorney General properly concedes that the former order is not appealable; under section 1538.5, subdivision (o), a petition for mandate or prohibition is the only method of review available where, as in this case, an order suppressing evidence has been made after a ‘special hearing in the superior court.’ But the Attorney General points out that Penal Code section 1238, subdivision 7, permits an appeal by the People ‘from an order dismissing a case prior to trial * * * pursuant to Section 1385 whenever such order is based upon an order granting defendant's motion to return or suppress property or evidence made at a special hearing as provided in this code.’ It is contended the addition of this provision by the same enactment[FN2] that added section 1538.5 implies an intention that: (1) if the court suppresses evidence, but does not dismiss, the exclusive remedy shall be by mandate or prohibition under subdivision (o) of section 1538.5; but (2) if the court dismisses the charge upon concluding that the evidence suppressed is essential to the prosecution's case, the People may, in pursuance of their undoubted right of appeal under section 1238, subdivision 7, seek review of the order suppressing evidence even though that order would not otherwise be appealable.

The contention advanced by the Attorney General is not unreasonable; it is one possible resolution of an obscurity apparently caused by ill-coordinated legislative draftsmanship. But there is another reasonable construction of the statutory language, i.e., that the People's appeal allowed by section 1238, subdivision 7, (which allows an appeal from the order of dismissal but makes no provision for an appeal from the order suppressing evidence) was intended to provide review not of the soundness of the order suppressing evidence but of the court's determination, after entry of an order suppressing evidence, that the evidence remaining in the prosecution's case, as disclosed by the grand jury or preliminary hearing transcript, was insufficient to justify requiring the accused to stand trial. On this theory an appeal after dismissal is exactly congruent in function with the People's appeal allowed by Penal Code section 1238, subdivision 1, from an order setting aside an information under Penal Code section 995.

That congruence in function is not the only indication of legislative intent. The time sequence displayed in the record before us is another such indication. The information against these respondents was filed October 23, 1967. Subsequent proceedings unfolded without unusual delay. The appeal is entitled to priority. Yet, if review of the order suppressing evidence could be had in this manner, the case would have hung in limbo for many months while the slow processes of an appeal are carried on. Such delay, which is likely to occur in any case procedurally related to this one, cannot be well reconciled with the policy expressed in the Penal Code section 1050 that ‘all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time, and it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree that is consistent with the ends of justice.’ Review by writ procedure can normally be completed within a few days or weeks, avoiding the undesirable delay demonstrated in the present appeal. Where statutory language is susceptible of two constructions, the more reasonable is to be followed as being more likely to represent legislative intent. (Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 630, 197 P.2d 543.) These considerations point away from the idea that section 1238, subdivision 7, should be construed as impliedly allowing appellate review of the order suppressing evidence; moreover section 1538.5, subdivision (o), suggests that the order suppressing evidence may be reviewed only by prohibition or mandate. Here no review by prohibition or mandate was sought; we hold that the propriety of the order suppressing evidence cannot be reached by an appeal from the subsequent order of dismissal.

We note that where the superior court has suppressed evidence after a special hearing, and thereupon dismisses the charge on the basis that the remaining evidence is insufficient to justify requiring the accused to stand trial, the court has made two separate and distinct determinations; the prosecutor is entitled to seek review of both. One is reviewable by prohibition or mandate and the other by appeal. To require simultaneous pursuit of both remedies would be useless. But the second determination (that the remaining evidence is insufficient and that the interests of justice therefore require dismissal) falls automatically if, upon review of the first by means of prohibition or mandate, it develops that the order suppressing evidence was incorrect. The language in section 1538.5, subdivision (o), allowing the prosecutor ‘30 days after a defendant's motion is granted’ imports that the court may not deprive the prosecutor of that remedy by dismissing under section 1385 until after the lapse of 30 days. Therefore, where an order suppressing evidence has been made after special hearing as in the present case, and the prosecutor does not signify his intention of abandoning review by prohibition or mandate, the court must, for 30 days pending the filing of such petition, withhold granting a dismissal under section 1385, even though the evidence remaining in the prosecutor's case would not justify further proceedings. The prosecutor need not depend on the grace and forbearance of the court in that regard; if as was done in the present case, the court prematurely dismisses the action, mandate lies to compel entry of an order setting aside the purported dismissal. (Cf. People v. Superior Court (1967) 249 Cal.App.2d 714, 57 Cal.Rptr. 892.)

Although no reported decision has analyzed the procedural questions dealt with here, note that despite the language of section 1538.5, subdivision (o), several decisions seem to take for granted that an appeal from an order of dismissal is competent to review an earlier order suppressing evidence. (See, e.g., People v. Superior Court (1969) 271 A.C.A. 395, 76 S.Ct. 712; People v. Rogers (1969) 270 A.C.A. 781, 75 Cal.Rptr. 919; People v. McGrew (1969) 269 A.C.A. 851, 75 Cal.Rptr. 378; People v. Jackson (1968) 268 A.C.A. 323, 74 Cal.Rptr. 40; People v. Armenta (1968) 268 A.C.A. 264, 73 Cal.Rptr. 819.) But it does not appear that the procedural issue was argued in any of these cases; in view of the great volume of cases which will require adjudication and review over the years under this loosely drafted statute, we deem it our duty to confront and resolve the problem of construction presented in this case.

The foregoing interpretation of the effect of section 1538.5, subdivision (o), is not inconsistent with the provision in subdivision (l) that ‘(n)othing contained in This subdivision shall prohibit a court, at the same time as it rules upon the search and seizure motion, from dismissing a case pursuant to Section 1385 when such dismissal is upon the court's own motion and is based upon an order at the special hearing granting defendant's motion to return property or suppress evidence.’ (Emphasis added.) The quoted language leaves open the questions we have dealt with concerning the interrelationship of review by writ and by appeal.

Examination of the preliminary hearing transcript discloses that exclusion of the evidence which the court ordered suppressed would result in a total failure of proof that respondents possessed marijuana. Accordingly, where no writ was sought to test the order suppressing evidence, the order of dismissal must be affirmed.

The purported appeal from the order suppressing evidence is dismissed; the order dismissing the charge pursuant to Penal Code section 1385 is affirmed.


1.  s 1538.5, subdivision (o): ‘Within 30 days after a defendant's motion is granted at a special hearing in the superior court, the people may file a petition for writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure motion. If the trial of a criminal case is set for a date which is less than 30 days from the granting of a defendant's motion at a special hearing in the superior court, the people, if they have not filed such a petition and wish to preserve their right to file such a petition, shall file in the superior court on or before the trial date or within 10 days after the special hearing, whichever occurs last, a notice of intention to file such a petition and shall serve a copy of the notice upon the defendant.’

2.  1967 Cal.Stats, ch. 1537.

CHRISTIAN, Associate Justice.

DEVINE, P.J., and RATTIGAN, J., concur.