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PEOPLE v. SMITH (1997)

Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Zolli George SMITH, Defendant and Appellant.

No. H014772.

Decided: January 28, 1997

Lawrence H. Smith, Under Appointment by the Court of Appeal Sixth District Appellate Program, for Defendant. Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass Sr., Assistant Attorney General, Violet M. Lee, Deputy Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, for Respondent.

Defendant Zolli George Smith was charged by information with possession of marijuana for sale (Health & Saf.Code, § 11359), unlawful possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)), and possession of marijuana (Health & Saf.Code, § 11377, subd. (a)).   After the superior court heard and denied a renewed motion to suppress evidence (Pen.Code, § 1538.5) 1 , defendant pleaded guilty to the possession for sale charge.   The trial court dismissed the remaining two charges, suspended imposition of sentence, and placed defendant on probation for 36 months upon condition, inter alia, that he serve 180 days in the county jail.   On appeal defendant contends all evidence obtained during a search of his residence must be suppressed because the search warrant “in no way particularly described [his] residence․”   He also claims the “[r]eview of municipal court ruling by the same judge violated [his] due process rights․”  (Emphasis omitted.)



Denial of the Suppression Motion***Propriety of Same Judge Presiding at Section 1538.5 Motion at the Preliminary Hearing and at the Renewed Motion in Superior Court

Superior Court Judge Kathleen K. Akao presided at both the preliminary hearing in defendant's case and at his renewed suppression hearing in superior court, apparently pursuant to a consolidation of municipal and superior courts in Santa Cruz County.  (See People v. Kwolek (1995) 40 Cal.App.4th 1521, 1528-1531, 48 Cal.Rptr.2d 325.)   At the preliminary hearing in municipal court, defendant moved to suppress evidence seized during the search of his residence.   Judge Akao denied the motion.   Defendant renewed his suppression motion in superior court.   The district attorney filed a response.   No new evidence was offered at the hearing on the renewed motion;  following argument and consideration of the preliminary hearing transcript and the pleadings, Judge Akao denied the renewed motion.

 On appeal, defendant contends, for the first time, that Judge Akao was disqualified by reason of judicial bias from presiding at the renewed suppression motion in superior court because she had presided at the preliminary hearing.   Defendant claims making of a suppression motion in the superior court, following denial of a suppression motion at the preliminary hearing, invokes appellate review by the superior court of the earlier ruling and that it is improper for a judge to engage in appellate review of his or her own rulings.

 This claim has been waived.   A party with a claim of judicial bias is obliged to raise it in the trial court at the earliest moment to allow a meritorious claim of bias to be easily corrected by assignment of a different judge.   Defendant cannot gamble on a favorable ruling in superior court by silently proceeding with his renewed suppression motion before the judge in question and then allowing the matter to proceed to judgment, only to seek to upset the judgment by complaining of judicial bias for the first time on appeal.   Such claims are waived if not timely brought and pursued in the trial court.  (See In re Steven O. (1991) 229 Cal.App.3d 46, 53-55, 279 Cal.Rptr. 868;  People v. Klaess (1982) 129 Cal.App.3d 820, 824, 181 Cal.Rptr. 355;  People v. Bryant (1987) 190 Cal.App.3d 1569, 1573-1574, 236 Cal.Rptr. 96;  People v. Beaumaster (1971) 17 Cal.App.3d 996, 1009, 95 Cal.Rptr. 360.)   Any claim of purported judicial bias has been waived.

 In any event, the premise of defendant's claim is flawed because on a renewed suppression motion the superior court does not function as a reviewing court.  Section 1538.5, as amended effective January 1, 1987, ensures a single full litigation of a suppression issue while eliminating multiple de novo litigations allowed under the old law.  “Under the statutory authority, a defendant may bring the suppression motion either at the preliminary hearing or in the superior court, and may renew the motion in superior court if the preliminary hearing motion is unsuccessful, introducing any evidence that could not reasonably have been presented at the preliminary hearing.   This procedure gives defendants every opportunity necessary to present their claims fully.”   (People v. Hansel (1992) 1 Cal.4th 1211, 1220, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

 In the latter situation, the motion in the superior court should be viewed as a renewal or reopening of the earlier suppression proceeding, not an appellate “review” of it.   The superior court must “base its ruling on all evidence presented at the special hearing and on the transcript or the preliminary hearing ․” (§ 1538.5, subd. (i).)  The superior court is bound by the findings of the magistrate that are supported by substantial evidence and are “not affected by evidence presented at the special hearing.” (§ 1538.5, subd. (i).)  (See, e.g., People v. Ramsey (1988) 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309;  People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223, 266 Cal.Rptr. 473;  (People v. Hansel, supra, 1 Cal.4th at p. 1218, 4 Cal.Rptr.2d 888, 824 P.2d 694.))   No case purports to hold the superior court's function is appellate review of the magistrate's ruling.   The binding effect of the magistrate's findings, if supported by substantial evidence and if unaffected by any evidence adduced in the superior court, is intended to preclude unnecessary de novo litigation rather than to create appellate review by the superior court.  (See Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 538-539, 253 Cal.Rptr. 651.)   The statute provides that pretrial “review” shall be by means of a petition to an appellate court for a writ of mandate or prohibition. (§ 1538.5, subd. (i).)

Inasmuch as the hearing in the superior court is a renewal of the earlier ruling, if there was one, it is entirely proper that the judge who made the initial ruling preside at the renewed or reopened motion.   In People v. Sotelo (1996) 47 Cal.App.4th 264, 270, 54 Cal.Rptr.2d 643, in addressing an analogous point, namely, the scope of renewal of a superior court suppression motion, the court noted a “ ‘declared legislative purpose of preventing the unnecessary expenditure of time resulting from multiple suppression hearings' ” and observed that “ ‘[a]llowing more than one hearing would invite abuse, since a defendant may prefer to “forum shop” by raising each ground separately and possibly before different judges.’ ”  (Italics omitted.)

In People v. Hansel, supra, 1 Cal.4th 1211, 4 Cal.Rptr.2d 888, 824 P.2d 694, the Supreme Court adopted a similar view in allowing the People to recall preliminary hearing witnesses at the special hearing in the superior court:  “In amending the statute, the Legislature intended ‘to limit the number of hearings a defendant may receive on motions to suppress evidence.’  (Sen. Com. on the Judiciary, Rep. on Assem.   Bill No. 2328 (1985-1986 Reg. Sess.) p. 3.) ․ As written, the section serves the legislative purpose by substantially reducing the total amount of time spent litigating suppression motions.   Under our interpretation, a full de novo hearing is avoided, thus advancing the legislative goal behind section 1538.5, subdivision (i).”  (1 Cal.4th at p. 1218, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

The court in Hansel further explained that “the defendant may choose to litigate fully the validity of the search or seizure in question either at the preliminary hearing or in the superior court.   The defendant has an advantage at the preliminary hearing since the section does not require the accused to give the prosecution notice of the motion or to present a formal written motion.   At the second hearing in the superior court, the defendant may present a better researched and written motion.   These procedural advantages given to the defendant may be offset to some extent by the People's ability to recall witnesses who testified at the preliminary hearing.   However, the defendant is not really disadvantaged, since any recalled witnesses will be subject to cross-examination and, presumably, any inconsistencies in their testimony will be exposed.   Additionally, the statute would permit the defendant to call witnesses to rebut any new evidence presented by the prosecution, since that rebuttal ‘could not reasonably have been presented at the preliminary hearing.’ (§ 1538.5, subd. (i).)”  (1 Cal.4th at p. 1222, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

The Legislature expressed a similar view in an analogous context.   Where a suppression hearing is granted, and the defendant is not held to answer, the People may file a new complaint in municipal court, seek a new indictment for filing in superior court, or move to reinstate the complaint. (§ 1538.5, subd. (j).)  If the defendant's suppression motion is granted twice, the People may not proceed with the suppressed evidence unless they have discovered new evidence not reasonably discovered at the time of the second suppression hearing.  Section 1538.5, subdivision (p) provides “[r]elitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.”   Section I of Statutes 1993, chapter 761, provides, “It is the intent of the Legislature, in amending section 1538.5 of the Penal Code, that this act shall not be construed or used by a party as a means to forum shop.”

We agree with the People that to require a different judge at each step “would frustrate the legislative purpose” and “would also eviscerate the consolidation of the municipal and superior courts by prohibiting the same trial judge from handling the same case from beginning to end.”

 Judge Akao was not disqualified simply because she had presided and ruled at an earlier proceeding on the same subject.   For example, motions are often filed in superior court for reconsideration of a trial court's earlier rulings.   It must be presumed trial judges are capable of reconsideration of their legal rulings.  (See, e.g., People v. Yeager (1961) 55 Cal.2d 374, 391, 10 Cal.Rptr. 829, 359 P.2d 261;  Kreling v. Superior Court (1944) 25 Cal.2d 305, 310-313, 153 P.2d 734;  People v. Tappan (1968) 266 Cal.App.2d 812, 815-817, 72 Cal.Rptr. 585;  People v. Gibbs (1970) 12 Cal.App.3d 526, 537, 90 Cal.Rptr. 866;  People v. Reyes (1976) 62 Cal.App.3d 53, 68, 132 Cal.Rptr. 848;  People v. Bryant, supra, 190 Cal.App.3d at pp. 1572-1574, 236 Cal.Rptr. 96.)

 In summary, we conclude this issue was waived by defendant's failure to raise it in the trial court;  whether a constitutional claim or not, it was forfeited by his failure to seek pretrial writ relief.   (People v. Brown (1993) 6 Cal.4th 322, 336, 24 Cal.Rptr.2d 710, 862 P.2d 710.)   In any event, the superior court judge does not engage in appellate review of the preliminary hearing suppression ruling and is not disqualified simply by having presided at the earlier suppression proceeding at the preliminary hearing.   We conclude a judge who presides at the initial suppression hearing at the preliminary hearing and at the renewed or reopened hearing in superior court does not engage in conduct which automatically constitutes judicial bias or violates due process.  (Cf. People v. Brown, supra, 6 Cal.4th at pp. 328-334, 24 Cal.Rptr.2d 710, 862 P.2d 710.)

 Finally, given that we independently have concluded that suppression of the evidence seized from defendant's residence was not warranted, defendant cannot establish prejudice based upon his claim that Judge Akao lacked the ability to review her ruling on the suppression motion in municipal court.


The judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote *, ante.

COTTLE, Presiding Justice.


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PEOPLE v. SMITH (1997)

Docket No: No. H014772.

Decided: January 28, 1997

Court: Court of Appeal, Sixth District, California.

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