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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Albert RAWLINGS, t/n Dennis Chew, Defendant and Respondent.

Cr. 25584.

Decided: September 10, 1974

Burt Pines, City Atty. by Gerry L. Ensley, Deputy City Atty., for plaintiff and appellant. Richard S. Buckley, Public Defender, Harold E. Shabo, Karen M. Berlie, Martin Stein by Martin Stein, Deputy Public Defenders, for defendant and respondent.

Defendant was charged in a complaint filed in the Municipal Court of the Los Angeles Judicial District with violating Vehicle Code section 23102, subd. (a) (driving under the influence of intoxicating liquor) and Vehicle Code section 12500, subd. (a) (driving without a valid driver's license).

Prior to trial, defendant made a ‘motion to suppress' the results of a gas chromatograph test which had been administered to determine the amount of alcohol in defendant's system. In connection with a hearing on the motion it was stipulated that the police officer who had administered the test had not been trained in accordance with the provisions of section 1221.4, subd. (c) and subd. (d) of Title 17, California Administrative Code, Section 5. The city attorney, however, offered to prove that the testing officer at the time of administering the test was acting under the direct supervision of an officer who had been so trained and that the test was correctly performed.

The offer of proof was rejected and the trial court ordered the evidence ‘suppressed.’ The city attorney then indicated that in his opinion the case could not go forward without the ‘suppressed’ evidence. After a colloquy with the court the city attorney stated, ‘I would ask the court to dismiss the entire case, so we may appeal. . . . I am not going to dismiss it. If you do it on your own, we will appeal it.’

The court on its own motion ordered the case dismissed and indicated in its minute order that such dismissal was ‘after refusal of the People to go forward.’

The People appealed to the superior court, appellate department, which court dismissed the appeal as being taken from a non-appealable order. We accepted certification.

To begin with, the so-called ‘order of suppression’ was not within the purview of Penal Code section 1538.5 which provides for pre-trial suppression hearings dealing with the issue of search and seizure. Here there was no issue of Search and seizure involved. The issue was not whether the officers could constitutionally administer the test but only the mechanical circumstances of its administration. Penal Code section 1538.5 does not provide an omnibus procedure for the pre-trial determination of rulings on evidentiary questions generally. (People v. Morrow, 276 Cal.App.2d 700, 81 Cal.Rptr. 201.) Nor was the order pursuant to any other established procedure providing for pre-trial determination of questions of the admissibility of evidence.

In short, the motion and the order were nothing more than an informal indication of how the judge would later rule on the question and was not binding on the judge or the parties.

While we have concluded that under the circumstances the People are foreclosed from appellate review of the ‘suppression’ order, to prevent such occurrences in the future we feel obliged to indicate that the judge's ruling on the admissibility of the test was in error.

Health and Safety Code section 436.52 requires the State Department of Health to adopt rules and regulations to govern the administering of breath tests for the purpose of determining blood-alcohol levels. Those regulations which are pertinent here are contained in Title 17, California Administrative Code, section 1221.4, which provides in part:

‘(c) Analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects:

‘(1) Theory of operation;

(2) Detailed procedure of operation;

(3) Practical experience;

(4) Precautionary check-list;

(5) Written and/or practical examination. . . .'

(Emphasis added.)

The regulation clearly envisions training such as was apparently being performed in the instant case. More important, however, neither the regulation nor its parent statute refer to the admissibility into evidence of any tests which fail to follow the regulation. These regulations do not affect such admissibility. The law favors admissibility of relevant evidence. (Evid.Code, § 351.) Where a statute, such as this, does not specifically provide that evidence shall be excluded for failure to comply with said statute and there are no constitutional issues involved (and none are involved here) such evidence is not inadmissible. Statutory compliance or noncompliance merely goes to the weight of the evidence. (People v. Brannon, 32 Cal.App.3d 971, 108 Cal.Rptr. 620; People v. Fite, 267 Cal.App.2d 685, 73 Cal.Rptr. 666; People v. Wren, 271 Cal.App.2d 788, 76 Cal.Rptr. 673; 56 Ops.Atty.Gen., p. 38.) (People v. Foulger, 26 Cal.App.3d Supp. 1, 103 Cal.Rptr. 156 is disapproved.)

The right of appeal is purely statutory. The appeal before us is not from the order of ‘suppression,’ as no such appeal is authorized. (Pen.Code, § 1466.)

If the trial court during trial had ruled, albeit erroneously, that the questioned evidence was inadmissible, the People would have had no right of appeal. (See People v. Valenti, 49 Cal.2d 199, 316 P.2d 633.) The fact that the ruling here was prior to trial does not alter the situation since there is no statutory provision (except for Penal Code section 1538.5) for the obtaining of pre-trial rulings on evidentiary questions and the appellate review of such rulings. The procedure which was followed in this case would, if countenanced, result in such an appellate review without benefit of legislation.

The appeal here is from the order of dismissal, which appeal is permitted by the language of Penal Code section 1466 as follows:

‘An appeal may be taken from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located, in the following cases.

1. By the people: (a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy: . . .'

Thus we undertake to review the order of dismissal.

Penal Code section 1385 provides: ‘The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.’

While the court has wide discretion under that section the very fact that the reasons for a dismissal must be set forth in the minutes indicates that the power is not absolute. (People v. Curtiss, 4 Cal.App.3d 123, 84 Cal.Rptr. 106; also see People v. Shaffer, 182 Cal.App. 239, 5 Cal.Rptr. 844; Fick v. Board of Medical Examiners, 31 Cal.App.3d 247, 251, 107 Cal.Rptr. 280.)

In determining whether the dismissal should be set aside we look to the reasons for the order which were entered in the minutes. The minutes recite that the reason for the dismissal was the refusal of the People to go forward with the case. Clearly such a refusal provides good grounds for a court to dismiss a criminal proceeding.

The crux of the matter is whether we should take the additional step, as suggested by the People, of reviewing the reason why the People refused to go forward, to wit: the erroneous and legally ineffectual ruling of the trial court in ordering the evidence suppressed.

Penal Code section 1238(a)(7) and section 1238(c) applicable to appeals from the superior court provide for an appeal from an order of dismissal under Penal Code section 1385, when such order is in turn based on an order suppressing evidence prior to trial, and a review on appeal of the underlying suppression order. But even those provisions specify that the suppression order must have been made at a hearing held pursuant to Penal Code section 1538.5.

It is clear that a true suppression order pursuant to Penal Code section 1538.5 followed by a dismissal can be reviewed on appeal under Penal Code section 1466. (Pen.Code, § 1538.5(d) and (m).)

The defendant here and the appellate department in its opinion, relying on People v. Caserta, 14 Cal.App.3d 484, 92 Cal.Rptr. 382, attached considerable significance to the fact that the People in effect invited the dismissal by suggesting that the court dismiss the action because of the People's perceived inability to proceed.

We are of the opinion that in a situation of dismissal of a misdemeanor complaint under section 1385 of the Penal Code, following a true suppression order under Penal Code section 1538.5, the semantics used are not controlling. Caserta involved proceedings in the superior court and it was there pointed out that the People had available other means of testing the suppression order by way of extraordinary writ under subdivision (o) of section 1538.5 of the Penal Code. These latter remedies are not available in misdemeanor prosecutions.

In a misdemeanor prosecution the People are nevertheless entitled to appellate review of the pre-trial suppression order. This can be accomplished by a direct appeal from the order (Pen.Code, § 1538.5(j); Adams v. Superior Court, 8 Cal.App.3d 569, 87 Cal.Rptr. 667) or by obtaining a dismissal of the action and appealing from the order of dismissal. (Pen.Code, §§ 1538.5(d) and (m), 1466.) In view of the desirability of bringing misdemeanor cases to trial in a speedy fashion, the latter procedure would appear to be preferable and more beneficial to the defendant.

In ruling on a motion to suppress the superior court generally has available a transcript of the preliminary hearing and is in a position to know the impact of the suppression order on the People's case. That court then is more likely to act on its own motion in dismissing an action than is a municipal court judge presiding over a misdemeanor prosecution where no such transcript is available.

In order to permit the trial court in a misdemeanor prosecution to intelligently determine whether an action should be dismissed after a suppression order, it will generally be necessary for the prosecutor to advise the court of the effect of the suppression order on the case. It should make no difference as to the People's right to seek appellate review whether the proscutor simply states as a fact that he cannot proceed or suggests to the court that a dismissal is in order.

Had the order in the Present case been a true suppression order under Penal Code section 1538.5, we would have no hesitancy in holding such order reviewable under the procedure which was followed. However, since the order here was merely an informal advisory ruling of an evidentiary question with no constitutional ramifications and did not have the effect of actually suppressing any evidence, it may not be reviewed on appeal for the reasons previously stated.

We recognize that the People's case faced an uncertain fate if they had proceeded to trial with the judge having indicated his view of the admissibility of the key evidence. True, he might have reversed himself but if he did not and rejected the test results after jeopardy had attached, the People would have been in no different position than if they had proceeded to trial without any pre-trial indication of the judge's attitude.

The order of dismissal is affirmed.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.