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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred LEWIS, Defendant and Appellant.

Cr. 21901.

Decided: August 22, 1973

Harvey Jay Migdal, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. William E. James, Asst. Atty. Gen., William R. Pounders, Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

Appeal from a judgment of conviction based on a plea of nolo contendere to one count of robbery in the first degree. Defendant's plea was the product of a ‘plea bargain’ as a result of which four additional counts of robbery, each of which contained an allegation that defendant was armed with a deadly weapon, were dismissed.

The selection of the particular count to which defendant entered his plea appears to gave been predicated on the fact that it was the only count which did not contain the armed allegation.

Prior to the entry of the plea defendant had moved pursuant to section 1538.5 of the Penal Code to suppress certain evidence. That motion was directed only to the testimony of one witness. Defendant now seeks further review under Penal Code section 1538.5(m) of the trial court's denial of his motion.

We have concluded that the trial court's ruling was a correct one but we need not discuss its merits for the reason that defendant is foreclosed by the ‘plea bargain’ from raising the issue on appeal.

The charges against defendant were set forth in two separate informations which by order of the trial court were consolidated. Information No. All9704 charged defendant with three counts of robbery, each committed on July 31, 1971 against three separately named victims. Information No. A177657 charged defendant with two counts of robbery committed on August 10, 1971 against one Richard Zuber and Arturo Gutierrez. The filing of those informations was preceded by two separately held preliminary hearings. The record contains a copy of the transcript of the testimony taken at the preliminary hearing in case No. A177657. It reveals that the victims of the two counts, Zber and Gutierrez, were held up in a jewelry store in Torrance. Gutierrez positively identified defendant as one of the perpetrators of the robbery. Another independent witness, Douglas Lynch, also identified defendant.

The motion to suppress was concerned only with the testimony of Lynch. Following the denial of the motion defendant requested a continuance to consider the possibility of seeking a writ in this court to review that ruling. No such writ was sought and at the next appearance of defendant, the bargain was consummated and defendant entered his plea to the first count of Information No. A177657 in which Zuber was named as the victim.

Since defendant did not move under Penal Code section 995 to set any of the counts aside, it must be assumed that all counts in both informations were supported by adequate competent evidence adduced at the preliminary hearing. Assuming that the trial court had suppressed Lynch's testimony, all of the other evidence including that of Gutierrez stood undiminished and unassailed.

Penal Code section 1538.5(m) permits a defendant to appeal from an adverse ruling on a motion to suppress after a plea of guilty or nolo contendere. Such provision was intended to avoid the time and expense of forcing a defendant to proceed to trial on the merits in order to preserve his right to appeal when the only issue in the case is whether the evidence against defendant was legally obtained.

Penal Code section 1538.5(m) is a departure from the general rule that a plea of guilty voluntarily entered forecloses appellate review of ‘irregularities not going to the jurisdiction or legality of the proceedings . . .’ (People v. Laudermilk, 67 Cal.2d 272, 282, 61 Cal.Rptr. 644, 651, 431 P.2d 228, 235; also see People v. Warburton, 7 Cal.App.3d 815, 86 Cal.Rptr. 894.) It should be strictly construed in light of its objective.

In the case at bar there is a complete absence of any suggestion that the case against defendant stood or feel on the result of the trial court's ruling on the motion to suppress or that defendant's plea was the product of the failure of his suppression motion.

The defendant struck a bargain and selected the charge to which he would plead. He got the full benefit of that bargain. In the absence of any express stipulation that as part of the bargain, defendant reserved his right to challenge the ruling on suppression, we conclude that defendant waived the right to such challenge.

Our research has not disclosed any cases involving the application of Penal Code section 1538.5(m) which directly address the effect of a plea bargain on defendant's right to review a ruling on a suppression motion following a plea of guilty or nolo contendere.

Penal Code section 1538.5 was first enacted in 1967. Plea bargains first received official recognition by the Supreme Court in 1970 (People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409). From this, it appears that subdivision (m) was not enacted in contemplation of the use of the plea bargain but instead contemplated the situation such as the typical narcotic case where the suppression issue goes to the very heart of the prosecution's case and where the defendant pleads as charged.

It must be remembered that not every erroneous denial of a motion to suppress will result in reversal of a judgment of conviction. The harmless error rule oftentimes comes into play in a review of such ruling after a trial on the merits. There appears to be no reason why that rule is not also applicable to a review of a judgment based on a plea of guilty.

Oftentimes it is difficult to apply the harmless error rule to judgments based on a plea of guilty because the record does not contain sufficient information to enable the reviewing court to make a proper assessment of the problem. However, in a plea bargain where the defendant by pleading guilty or nolo contendere to a lesser offense than that charged or is assured a lesser sentence than which might result from a conviction of the charged offense, the efficient cause of the plea is the gain of a benefit or the avoidance of a risk. Thus in the absence of some special circumstances disclosed by the record it can be assumed that the defendant, having gained the benefit of his bargain, was not prejudiced by the denial of his motion to suppress.

It is highly unlikely that the defendant here would have persisted in his plea of not guilty and run the risk of conviction of five counts of robbery with armed allegations even if the motion to suppress Lynch's testimony had been successful. No convincing showing of prejudice is apparent either from the record or any argument in the brief.

The Supreme Court in West, supra, stated at page 599, 91 Cal.Rptr. at page 386, 477 P.2d at page 410: ‘In a day when courts strive to simplify trial procedures and to achieve speedier dispatch of litigation, we believe that the recognition of the legal status of the plea bargain will serve as a salutary time-saver . . ..’ However, the beneficial effect of the plea bargain in terms of conserving judicial time is partly eroded when such bargain if followed by an appeal from a pre-bargain ruling on suppression. Thus the effect of our ruling is to increase the value of the plea bargain by requiring the parties and the trial court, in reaching ‘a frank, open and realistic appraisal of its propriety’ (West, supra, at p. 599, 91 Cal.Rptr. at p. 386, 477 P.2d at p. 410), to deal with the element of appellate review under Penal Code section 1538.5(m) by, where appropriate, including it as an element of the bargain.

The judgment is affirmed.

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.