Reset A A Font size: Print

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

Richard Thomas MANDELL, Petitioner and Appellant, v. VENTURA COUNTY MUNICIPAL COURT, Respondent; The PEOPLE, Real Party in Interest.

Civ. 53305.

Decided: June 18, 1979

Roger W. Borrell, Oxnard, for petitioner and appellant. C. Stanley Trom, Dist. Atty. of Ventura County and Frank Miceli, Jr., Deputy Dist. Atty., for real party in interest. No appearance for respondent.

Defendant has appealed from an order denying his petition for writ of prohibition. The procedural history of this case may be briefly summarized as follows: on March 13, 1977, appellant was charged with a violation of Vehicle Code section 23102(a), driving under the influence of alcohol. He was arraigned in Ventura County Municipal Court, entered a plea of not guilty, and the matter was set for trial on May 16.

On April 21, 1977, appellant's motion to suppress evidence pursuant to Penal Code section 1538.5 was heard and denied. On May 5, 1977, defendant filed a notice of appeal in the superior court from the order denying his motion to suppress evidence. Appellant then filed in the municipal court a motion for continuance of his trial, pending appellate determination of the ruling on the motion to suppress evidence. That motion was denied on May 11, 1977.

On May 13, 1977, appellant filed a petition for writ of prohibition in the Superior Court of Ventura County, requesting that the superior court restrain the Ventura County Municipal Court from proceeding with defendant's trial pending appellate ruling on the motion to suppress evidence.

After hearing held in the superior court on June 20, 1977, the petition for writ was denied. Judgment thereon was entered on August 23, 1977, and defendant has appealed to this court from that judgment.

Following the denial of the petition for writ, defendant was tried in the Ventura County Municipal Court by a jury and convicted on August 8, 1977. Defendant appealed to the Superior Court of Ventura County from the judgment of conviction. The judgment of conviction was affirmed without opinion by the appellate department of the Ventura County Superior Court on May 23, 1978.

On this appeal, defendant contends that the municipal court was without jurisdiction to proceed with the trial of the criminal proceedings against him and that the superior court erred in refusing issuance of the requested writ of prohibition. We note first that the issues raised by defendant are moot. The order complained of here is the refusal of the superior court to issue a writ of prohibition. “Prohibition is a preventive, rather than a corrective, remedy. It issues only to restrain the commission of a future act and not to undo an act already completed. It does not lie after judgment is entered where there are no further judicial acts to be performed or to prevent the enforcement of an erroneous judgment.” (Baker v. Municipal Court (1961) 198 Cal.App.2d 556, 557, 17 Cal.Rptr. 642, 643.)

Nonetheless, this court has the discretion to reach and resolve the issues presented in this case because “important public questions are involved.” (Rattray v. Scudder (1944) 67 Cal.App.2d 123, 128, 153 P.2d 433.) The findings of fact executed by the Superior Court of Ventura County, at the time of the denial of defendant's petition for writ of prohibition, reflect that the action taken in this case (i. e., the trial of the defendant prior to an appellate ruling on his motion to suppress) is customary procedure, at least in the County of Ventura.1 Thus, determination of the power of a trial court to proceed with trial after a defendant has taken an appeal from an order denying his motion to suppress evidence in a misdemeanor proceeding will affect not only the defendant in the case before us but many others similarly situated. “It is . . well settled that an appeal will not be rendered moot if the parties raise substantial questions of public interest that are likely to recur. [Citations.]” (Marin County Board of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929, 130 Cal.Rptr. 1, 6, 549 P.2d 833, 838.) Inasmuch as this case presents significant justiciable issues, we now turn to the merits.

The Effect of Filing the Notice of Appeal

Unlike the remedy for relief from most interlocutory orders (i. e., the taking of an extraordinary writ) (see, for example, Brown v. Superior Court (1949) 34 Cal.2d 559, 212 P.2d 878) the Legislature has determined that the appropriate method of review of an order granting or denying a motion to suppress evidence in the municipal court is by way of appeal. Penal Code section 1538.5, subdivision (j) provides in part as follows: “If the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the municipal court or justice court prior to trial, both the people and defendant shall have the right to appeal any decision of that court relating to that motion to the superior court of the county in which such inferior court is located, in accordance with the California Rules of Court provisions governing appeals from municipal and justice courts in criminal cases.”

The right to appeal from the pretrial order being expressly authorized by statute, the question before us is not whether defendant could properly appeal the denial of his motion, but whether that appeal automatically stays all further proceedings in the lower court during its pendency.

We note at the outset that the question presented here appears to be a novel one in California. The parties have cited, and our research has discovered, no cases dealing with the precise issue before us: whether the trial court has jurisdiction to try a defendant who has taken an appeal from a pretrial order denying his motion to suppress. However, the effect of filing a notice of appeal from other judgments or appealable orders is well established in California. In People v. Murphy (1969) 70 Cal.2d 109, 116, 74 Cal.Rptr. 65, 69, 448 P.2d 945, 949, the Supreme Court recited the rule as follows: “It is code law that the taking of an appeal ‘stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein.’ (Code Civ.Proc., § 946.) This rule governs in both civil [[[[citation] and criminal causes (see Anderson v. Superior Court (1967) 66 Cal.2d 863, 865, 59 Cal.Rptr. 426, 428 P.2d 290 …) ․”

Most California cases applying the foregoing rule have done so in connection with the power of the trial court to take some post-trial action following an appeal from the judgment. For example, in People v. Sonoqui (1934) 1 Cal.2d 364, 366, 35 P.2d 123, 124, the court stated: “‘An appeal from the judgment or order denying a motion for a new trial removes the subject-matter thereof from the jurisdiction of the superior court. Pending the appeal the superior court has no jurisdiction to vacate the judgment or make any order affecting it. (People v. Mayne, 118 Cal. 516, 50 P. 654, …) The jurisdiction of the court on appeal is not determined by the presence or absence therein of the record on appeal. [Citation.] The appeal may be subject to dismissal, either by the appellant or by the respondent on proper grounds, or by stipulation, but until it is disposed of the jurisdiction of the subject matter of the judgment is vested in the appellate tribunal.”’ (Citing In re Johannes (1931) 213 Cal. 125, 129-130, 1 P.2d 984. To the same effect see People v. Getty (1975) 50 Cal.App.3d 101, 107, 123 Cal.Rptr. 704, 708, “Upon filing of the notice of appeal, jurisdiction of the cause vested in this court. Ordinarily in that event ‘the trial court loses jurisdiction during that period to do anything in connection with the cause which may affect the judgment.’ [Citations.]”

Of course, despite the pendency of an appeal, the trial court “may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ.Proc., § 916, subd. (a).) Thus, if the appeal is on a collateral matter, the court may have jurisdiction to proceed to trial on the merits, as in Gray v. Bybee (1943) 60 Cal.App.2d 564, 571, 141 P.2d 32, where the appeal was taken from an order granting a temporary restraining order. In Estate of Kennedy (1948) 87 Cal.App.2d 795, 197 P.2d 844, an appeal from orders confirming a special administrator's sale did not deprive the probate court of jurisdiction to determine a will contest. And after a notice of appeal has been filed from a judgment, the trial court retains jurisdiction to consider a motion for new trial. (Neff v. Ernst (1957) 48 Cal.2d 628, 311 P.2d 849.)

As explained in People v. Hall (1952) 115 Cal.App.2d 144, 154-155, 251 P.2d 979, 986: “An appeal from an order denying a motion to set aside a judgment does not operate to deprive the trial court of all jurisdiction over the cause pending the appeal from the order, but only over so much of it as is affected by the appeal. An appeal of that character does not divest the trial court of jurisdiction as to purely collateral or supplemental matters distinct from the question involved on the appeal.”

As discussed hereinafter, a trial on the merits cannot be deemed collateral to an appeal from a ruling on a motion to suppress evidence, nor is it “distinct from the question involved on the appeal.” (Id. at p. 155, 251 P.2d at p. 986.) The outcome of the appeal may render the trial unnecessary.

In People v. Superior Court (MacLachlin) (1969) 271 Cal.App.2d 338, 347, 76 Cal.Rptr. 712, 717, the trial court had granted defendant's motion to dismiss the action and simultaneously granted his motion under Penal Code section 995, thus depriving the People of any right to appeal the dismissal. In condemning the court's action under Penal Code section 995, the court stated: “[T]he superior court has no more authority to terminate the criminal case by dismissal under section 995, Penal Code, than to proceed to trial pending the termination of appellate proceedings.”

People v. Owens (1945) 71 Cal.App.2d 831, 164 P.2d 28 (rev. on other grounds, 28 Cal.2d 191, 168 P.2d 945), involved a notice of appeal from an order dismissing an action. After the notice of appeal was filed, the prosecuting agency refiled the charges against defendant and he was brought to trial. The reviewing court held that the lodging of the appeal deprived the lower court of all further jurisdiction over the subject matter and that the subsequent trial on refiled charges was error. This was true in spite of the “withdrawal” of the notice of appeal by the prosecutor.

Although no California cases have been found discussing the jurisdiction of a lower court to proceed with trial following a criminal defendant's appeal from an interim order, this issue was addressed in State v. Jackson (1961) 228 Or. 371, 365 P.2d 294. In that case, defendant filed a notice of appeal from the denial of his motion to dismiss the indictment. After filing his notice of appeal, he was tried and convicted. The court concluded 365 P.2d at page 299: “It is a well-settled rule that after jurisdiction has been vested in an appellate court by the taking of an appeal the lower court cannot proceed in any manner so as to affect the jurisdiction acquired by the appellate court or defeat the right of the appellants to prosecute the appeal with effect.”

The principle enunciated in the foregoing cases, that the taking of an appeal divests the trial court of further jurisdiction in the cause, must be applied to an appeal from an order denying defendant's motion to suppress unless the statute itself reflects a clear legislative intent to the contrary. Penal Code section 1538.5 is silent with respect to a defendant's right to a stay of the lower court proceedings pending his interim appeal. Legislative intent, therefore, must be determined from an analysis of the provisions of the statute with respect to misdemeanors. It is helpful first to observe that different provisions for appellate review are made with respect to felonies and misdemeanors. Penal Code section 1538.5, subdivision (o), provides that “[w] ithin 30 days after a defendant's motion is granted at a special hearing in the superior court, the people may file a petition for a writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure motion.” As previously noted, the procedure in a misdemeanor case is for the defendant to file an appeal to the superior court.

Several California cases have discussed the foregoing distinction in remedies, and their evaluation lends weight to the theory that the Legislature intended that appellate review of defendant's suppression motion be concluded before defendant is brought to trial. In Monica Theater v. Municipal Court (1970) 9 Cal.App.3d 1, at page 12, 88 Cal.Rptr. 71, at page 78, the court observed: “No doubt the variance in review remedies is based upon the assumption that the time schedule leading to a decision (by way of appeal) in the appellate department of a superior court is more rapid than that in the Court of Appeal (where mandate and prohibition provide the speedier means to a prompt decision) ․”

Similarly, in Cornelius v. Superior Court (1972) 25 Cal.App.3d 581, 102 Cal.Rptr. 59, the court stated at page 585, 102 Cal.Rptr. at 62: “Several cases, including People v. O'Brien, 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969 … and People v. Superior Court, 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202 …, as well as the legislative history of section 1538.5, convey the idea that the purpose of the statute is to achieve expeditious disposition of questions of suppression of evidence before trial with only one appellate review.” (Emphasis added.)

In Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 928, 85 Cal.Rptr. 493, 495, defendant sought a writ of mandate to order the trial court to grant his motion to suppress evidence. The court observed: “One legislative purpose in enacting section 1538.5 was to enable a defendant to raise a search and seizure issue at the earliest stage so as to save the inconvenience and expense of determining the issue at trial. [Citation.]”

In Ramis v. Superior Court (1977) 74 Cal.App.3d 325, 141 Cal.Rptr. 374, the court considered the legislative purpose in enacting subdivision (m) of Penal Code section 1538.5. At pages 332-333, 141 Cal.Rptr. at page 378, the court stated: “Subdivision (m) serves a valuable purpose in cases where the defendant has no defense other than his motion to suppress. The procedure intended is that defendant will make his motion to suppress in the superior court and, if the motion is denied, plead guilty and take his appeal. Subdivision (m) saves the delay and expense of a needless trial ․” Similarly, in our case, if the court order denying defendant's motion to suppress had been reversed on appeal, the “delay and expense of a needless trial” might have been avoided. Often, the suppression of evidence may result in a request for dismissal when the prosecutor no longer has sufficient evidence with which to proceed to trial.

In People v. Manning (1973) 33 Cal.App.3d 586, 595, 109 Cal.Rptr. 531, 537, the court discussed the legislative purpose behind the enactment of Penal Code section 1538.5 as follows: “It was one of the purposes of the section [[[[1538.5] to … substitute reviewable pretrial determinations.”

All of the foregoing reflects an understanding that a major purpose behind the enactment of this section was to avoid repetitious motions for suppression of evidence at various stages of criminal proceedings and to establish a “‘comprehensive plan, prescribing a single method of raising the issue in particular proceedings and at particular stages of the proceedings.”’ (People v. Superior Court (Abrahams) (1976) 55 Cal.App.3d 759, 768, 127 Cal.Rptr. 672, 678.) The legislative determination that the admissibility of evidence gained as a result of the search should be determined in advance of trial if possible would be thwarted by forcing the defendant to go to trial prior to final resolution of that issue. Defendant would be subjected to the expense and ignominy of a trial; the time of court staff, juries, defense counsel, and the prosecutor would be consumed in a trial which might well prove unnecessary. Such a result is in direct contravention of an expressed legislative desire for judicial economy.

Respondent argues, however, that an amendment to Penal Code section 1538.5, subdivision (l) in 1970 deprived defendant of his right to a stay of proceedings pending appeal. Prior to the amendment, the subdivision read: “[T] he trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of this state of the proceedings provided for in this section, … and … pending the time for the initiation of such proceedings.” The statute was amended to add the following prefatory language immediately preceding the sentence just quoted: “If the defendant's motion to return property or suppress evidence is granted, …” It is respondent's position that this amendment reflects a legislative determination that a criminal trial should be stayed pending intermediate appeal only when that appeal is taken by the People. We do not so interpret that amendment. As previously established herein, the right of either party to a stay of proceedings exists by operation of law, jurisdiction having vested in the appellate department upon the filing of a notice of appeal. Nothing in the amendment changes the existing law.

What the amendment to subdivision (l) accomplishes is to grant to the People a stay of the trial before the filing of a notice of appeal, immediately upon the granting of defendant's motion. This assures to the People a period of time during which to decide whether the granting of the motion was erroneous and should be appealed. As we explain hereinafter, this decision may be crucial to the People's case. If the order is not appealed at that point in the proceedings, the People's right to appellate review is permanently lost. A defendant, on the other hand, may appeal the order immediately, or he may choose to attack the trial judge's suppression ruling in an appeal from any judgment of conviction ultimately entered.

Therefore, we believe that the Legislature, in amending subdivision (l) was concerned not with depriving the defendant of his right to a stay of proceedings upon the filing of a notice of appeal, but of assuring that the People's right to a stay is guaranteed even prior to the filing of a notice of appeal. In People v. Superior Court (Mahle) (1970) 3 Cal.App.3d 476, 83 Cal.Rptr. 771, defendant contended that he was deprived of his right to a speedy trial by the granting of a stay of the trial proceedings pending appellate determination of the People's appeal from an order granting defendant's motion to suppress evidence. Penal Code section 1538.5, subdivision (l) provided, at that time, that “[t]he trial of a criminal case shall be stayed …” pending appeal. The reviewing court concluded that the right of the People to introduce at trial all relevant and admissible evidence constituted good cause for a continuance of the trial and that, therefore, there had been no violation of defendant's right to a speedy trial.

A particular problem is presented where the People appeal from the granting of a motion to suppress evidence. If there is no stay of the trial, the People are forced to trial without evidence which may be necessary in order to prove the corpus delicti or to connect the defendant with the offense. Assuming there was an acquittal, the defendant could not be retried, even if the appellate court ultimately determined that the motion should have been denied. Under these circumstances, a stay of the trial is critical to vindicate the People's right to maintain a successful prosecution with all the evidence available.

Penal Code section 1538.5, subdivision (l) as amended does not provide that a defendant is not entitled to a stay pending appeal. Its silence on that subject allows operation of the common-law right to such a stay. Our comparison of the legislative purpose behind the statute with the traditional rights of the defendant to a stay, convinces us that the Legislature intended that a defendant be granted a stay pending appeal to provide meaningful interlocutory review of municipal court suppression orders.

Our concurring colleague would construe section 1538.5 of the Penal Code as according an automatic stay to the People pending an appeal from an adverse ruling, regardless of the merits of their position, while denying such relief to the defendant under such circumstances. Such an interpretation would give greater procedural protection to the government upon an appeal than that given to an individual defendant and would result in a clear violation of equal protection of the laws. We are bound to construe a statute where possible to uphold its constitutionality. (People v. Davis (1968) 68 Cal.2d 481, 483-484, 67 Cal.Rptr. 547, 439 P.2d 651.) The construction we have placed on the statute results in an equal application of the law upon the filing of a notice of appeal.

The right to a pretrial appeal without a pretrial stay is meaningless. “It is axiomatic that one who takes a timely appeal is entitled to perfect it, and to suppress the exercise of such rights amounts to a denial of the equal protection of the law, because the [14]th Amendment of the Constitution of the United States prohibits any suppression.” (Agnew v. Superior Court (1953) 118 Cal.App.2d 230, 235, 257 P.2d 661, 663.)

The Superior Court of Ventura County erred in denying defendant's petition for writ of prohibition. However, as noted above, the remedy available to this defendant is not by way of appeal from the denial of the writ of prohibition.2 “There is nothing remaining in the municipal court to be prohibited.” (Crittenden v. Municipal Court (1963) 216 Cal.App.2d 811, 812, 31 Cal.Rptr. 280, 280.)

The order denying the petition for a writ of prohibition is affirmed.

The majority opinion declares that the filing of the notice of appeal from the Penal Code section 1538.5 ruling automatically brings into operation the rule that an appeal “removes the subject matter thereof from the jurisdiction of the [trial] court.” (People v. Sonoqui (1934) 1 Cal.2d 364, 366, 35 P.2d 123, 124.) The necessary corollary is that appellant's conviction was void because the trial court lacked jurisdiction while the appeal was pending. Nevertheless the majority denies relief. In my view, appellant was not entitled to an automatic stay of trial, his conviction was valid, and the judgment of the superior court should be affirmed on the merits.

Penal Code section 1538.5, as originally enacted in 1967, gave a defendant the power to create an automatic stay of trial simply by making a motion to suppress and then applying for appellate review of an adverse ruling. Section 1538.5, subdivision (j), then, as now, provided for pretrial review of a municipal court ruling by appeal, and subdivision (i) provided for pretrial review of superior court rulings by extraordinary writ.

In the 1967 statute, subdivision (l) provided: “The trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of the State of California of the proceedings provided for in this section, Section 1238, or Section 1466 and, except upon stipulation of the parties, pending the time for the initiation of such proceedings․”

Under this statute, any motion to suppress, however frivolous, could trigger an automatic stay of the trial for appellate review after denial in the trial court. This situation was changed by the 1970 amendment which added the following words at the beginning of subdivision (l): “If the defendant's motion to return property or suppress evidence is granted,”.

This qualifying language has the effect of limiting the automatic stay to cases in which the People are seeking review of an order suppressing evidence.

The plain language of the 1970 amendment eliminates the automatic stay previously available to the defendant. The result is that any delay of the trial at the defendant's request will be granted only by the exercise of discretion by the trial court or the reviewing court. The Legislature reasonably believed that courts would exercise this discretion fairly.

The sound reason for preserving the automatic stay for the People is readily seen. If evidence is erroneously suppressed and the trial goes forward, the defendant may be acquitted, and the People will not be able to appeal because of the prohibition against double jeopardy. However, if the trial court errs in denying a motion to suppress, the defendant may seek pretrial appellate review and a stay of trial; but if forced to trial, defendant may obtain review by an appeal from the conviction (subd. (m)).

This statutory system reflects the Legislature's intent, in 1970, to eliminate the automatic stay for pretrial appellate review except when the motion to suppress has been granted.

The effect of Penal Code section 1538.5, subdivision (l), is to bring before the reviewing court only a single issue and not the whole case. The Legislature created this special kind of appeal, pending which a stay of the trial was discretionary and not mandatory. What happens during the pendency of other kinds of appeals is immaterial.


1.  Findings of Fact numbers 6 and 7 read as follows:“6. Misdemeanor criminal cases prosecuted in Ventura County Municipal Court proceed to trial within a very few weeks of the arraignment. This is true even if the accused and/or his attorney waive time and request a later trial date.”“7. Appeals to the Appellate Department of the Ventura Superior Court from the Ventura County Municipal Court generally take two to five months prior to oral argument. Opinions are filed thereafter at varying times but there is generally a delay of thirty days to sixty days after oral argument before a decision is rendered.”

2.  Our discussion should not be interpreted as a holding that the judgment of conviction was void. Our review is limited to the narrow question of whether the order denying a stay of the trial was proper. For the reasons set forth in this opinion, we have determined that it was not. However, the validity of defendant's conviction has been reviewed by the Appellate Department of the Superior Court, and that decision has become final. The order denying defendant's petition for writ of prohibition must be affirmed, because the question of whether trial should be stayed pending appeal of the denial of the motion to suppress became moot upon the entry of the judgment of conviction in the municipal court.

ALARCON, Associate Justice.

KINGSLEY, J., concurs. FILES, Presiding Justice (concurring in the judgment):