PEOPLE v. LOPEZ (1987)

Mariano Robert Lopez appeals from an order of the superior court revoking his probation.   Lopez contends that evidence which has been illegally seized and suppressed pursuant to Penal Code section 1538.5 may not be used to revoke probation.

PROCEDURAL HISTORY

On September 16, 1983, Lopez entered a plea of no contest in the superior court to Penal Code section 459,¹ burglary, and section 470, forgery.   His application for probation was granted and he was placed on probation for five years.   One condition of probation was that he obey all laws.

On August 15, 1985, Lopez was detained by officers of the Santa Barbara Police Department and arrested for being under the influence of a controlled substance.   A misdemeanor complaint was filed charging him with a violation of Health and Safety Code section 11550.   Lopez moved to suppress all evidence relating to his arrest pursuant to section 1538.5.   On October 9, 1985, the municipal court found that Lopez had been illegally detained and suppressed the evidence.   On the following day the People filed a notice of appeal utilizing the appeal provisions provided for in section 1538.5.²

Prior to the October 9, 1985 suppression hearing, the People filed a statement of charges in the superior court alleging that Lopez was in violation of his probation.   A probation violation hearing was set for October 16, 1985, and subsequently continued to November 6, 1985.   At the probation hearing the People offered essentially the same evidence which had been suppressed at the October 9, 1985 hearing.   Lopez objected and argued that the evidence was inadmissible pursuant to section 1538.5, subdivision (d).³  The trial court disagreed, holding that since the order suppressing the evidence had been appealed, the exclusionary provision of section 1538.5, subdivision (d) was inapplicable.   The trial court found the defendant in violation of probation, ordered probation revoked, and sentenced the defendant to state prison.

CONTENTIONS

Lopez contends that the trial court's ruling admitting the evidence was erroneous.   He argues that pursuant to section 1538.5, subdivision (d), evidence previously suppressed on the grounds of illegal search or seizure may not be used to revoke probation unless the suppression order is reversed or set aside on appeal.   Lopez' contention is well taken.

DISCUSSION

 First, we need not dwell on respondent's preliminary claims that the evidence was erroneously suppressed and that the People's appeal was completely justified and meritorious.   As noted, the municipal court granted Lopez' motion to suppress evidence finding that he was illegally detained.   The People appealed pursuant to section 1538.5, subdivision (j) and the appellate court affirmed the order suppressing the evidence.⁴  The People requested no further appellate review.   The appeal, therefore, resulted in a decision which, pursuant to the provisions of section 1538.5, subdivision (j), was binding on the People.   Therefore, any contention regarding the impropriety of the municipal court's order is irrelevant.

 Second, we acknowledge that the exclusionary rule per se does not apply to parole hearings (In re Martinez (1970) 1 Cal.3d 641, 649–652, 83 Cal.Rptr. 382, 463 P.2d 734) or probation hearings (People v. Hayko (1970) 7 Cal.App.3d 604, 609–610, 86 Cal.Rptr. 726).   However, these cases are neither controlling nor dispositive of Lopez' contention.   The Martinez court noted that the competing interests between trials and post-conviction hearings are so different that “․ the general Fourth Amendment and Dorado exclusionary rules are not applicable to Adult Authority proceedings.”  (Martinez, supra, 1 Cal.3d at p. 650, 83 Cal.Rptr. 382, 463 P.2d 734.)   Lopez' contention, however, is not based on any constitutional mandate, but rather, the language of section 1538.5, subdivision (d).   Evidence which has been suppressed pursuant to section 1538.5 is subject to a “statutory exclusionary rule,” and to that extent, the Legislature has preempted the judicially created rule regarding the admissibility of illegally seized evidence at probation hearings.  (People v. Belleci (1979) 24 Cal.3d 879, 886–887, 157 Cal.Rptr. 503, 598 P.2d 473.)

 Turning to the merits, we find that the issue of the admissibility of the evidence at the probation revocation hearing is resolved by the language of section 1538.5 itself and the effect of the reenactment of the section after passage of Proposition 8.   As noted, section 1538.5, subdivision (d) provides that suppressed evidence shall not be admissible against the movant in any hearing unless appeal or writ procedures are utilized by the People.   In People v. Belleci, supra, 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, the Supreme Court held that evidence ordered suppressed at a hearing held pursuant to section 1538.5 could not be used at a subsequent sentencing hearing.   In People v. Zimmerman (1979) 100 Cal.App.3d 673, 161 Cal.Rptr. 188, the court held that a probation revocation hearing is a “hearing” within the meaning of the section and that subdivision (d) required exclusion of evidence which had been suppressed pursuant to section 1538.5 in any earlier proceeding.⁵  However, in neither Belleci nor Zimmerman did the People appeal from the order granting the suppression motion.   In the case at bar the trial court found this distinction persuasive and admitted the suppressed evidence.⁶  In other words, the trial court found that by simply filing an appeal, the People had utilized “further proceedings” as set forth in section 1538.5, subdivision (d).

We find that the trial court erroneously interpreted the phrase “unless further proceedings ․ are utilized by the People.”   First, the definition of a “proceeding” supports a broader interpretation.   A “proceeding” is defined in Webster's Third New International Dictionary (1981) at page 1807 as follows:  “The course of procedure in a judicial action or in a suit in litigation.”   A “proceeding” according to Black's Law Dictionary (5th ed. 1979) page 1083 is as follows:  “[T]he form and manner of conducting juridical business before a court or judicial officer.   Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment․”  A proceeding, therefore, encompasses more than a mere filing of an action or an appeal, it includes pursuing the matter to a decision or conclusion, whatever that conclusion may be.

 Second, section 1242 provides that:  “An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed.”   In People v. McRae (1947) 79 Cal.App.2d 79, 179 P.2d 3, the court held that an order dismissing an information pursuant to section 995 was a judgment in favor of the defendant, until it had been reversed on appeal.   We are persuaded that an order suppressing evidence pursuant to section 1538.5 is a “judgment” within the meaning of section 1242, and that a defendant is entitled to the benefit of the order until it is reversed on appeal or otherwise superseded by one of the methods set forth in section 1538.5.   Obviously, this interpretation of section 1538.5, subdivision (d) is more favorable to Lopez;  however, if the language of a statute is reasonably susceptible of different interpretations, the construction more favorable to the defendant should be adopted.  (People v. Belleci, supra, 24 Cal.3d 879, 886, 157 Cal.Rptr. 503, 598 P.2d 473.)

Third, as appellant points out, the trial court's interpretation and application of section 1538.5, subdivision (d) may lead to an unconscionable result.   A criminal defendant who prevailed in a suppression hearing would automatically lose the benefits of the suppression order by the mere filing of a notice of appeal by the People.   This result is particularly incongruous where, as here, the underlying suppression order is ultimately affirmed on appeal.   As appellant points out, the correct interpretation of section 1538.5, subdivision (d) is that it precludes the use of suppressed evidence at any hearing until the prosecution utilizes further proceedings and obtains a reversal of the suppression order.   However, until and unless the order is reversed, the defendant is entitled to the benefits of the order.  (§ 1242;  People v. Belleci, supra, 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473.)

 Although we find that the lower court incorrectly interpreted section 1538.5, subdivision (d), this finding is not necessarily dispositive because respondent contends that the court's order admitting the evidence was proper regardless of the court's interpretation of section 1538.5, subdivision (d).   Respondent argues that since the passage of Proposition 8, People v. Belleci, supra, 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, and People v. Zimmerman, supra, 100 Cal.App.3d 673, 161 Cal.Rptr. 188, no longer control the admissibility of evidence which has been suppressed pursuant to section 1538.5.   Respondent urges that Belleci and Zimmerman must be reexamined in light of the passage of Proposition 8 and our Supreme Court's opinion in In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.   This was the holding of the court in People v. Brewster, supra, 184 Cal.App.3d 921, 229 Cal.Rptr. 352.   However, that result is not necessarily inconsistent with ours here.   The Brewster court did not address the effect of the reenactment of section 1538.5, including subdivision (d) after enactment of Proposition 8.   As set forth infra, the reenactment requires a different result.   It may be that Brewster involved an offense occurring between the time Proposition 8 was passed and the reenactment of section 1538.5 occurred.

Proposition 8 on the June 1982 California primary election ballot added section 28, subdivision (d) to article I of the California Constitution.   That section provides in part:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding․”  The Lance W. court held that Proposition 8 eliminated “․ a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.”  (In re Lance W., supra, 37 Cal.3d at pp. 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)   We need not respond to respondent's assertion that Proposition 8 also eliminated statutorily created exclusionary rules because subsequent to the adoption of Proposition 8, the Legislature twice enacted amendments to section 1538.5, both of which retained the operative provisions of subdivision (d).

As noted, the introductory proviso to article I, section 28 provides that relevant evidence shall not be excluded except as provided by statute hereafter enacted by the Legislature.   In People v. Willis, supra, 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281, the appellate department of the superior court of Santa Barbara County held that since section 1538.5, subdivision (d) had been reenacted after the passage of Proposition 8, suppressed evidence still cannot be used at probation revocation hearings.   Respondent urges that In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, compels a different conclusion and in that regard People v. Willis is wrong.

Lance W. is distinguishable from People v. Willis and the case at bar.   The Lance W. court analyzed the effect of the reenactment of section 1538.5 on state constitutional standards for excluding evidence.   The court concluded that the reenactment of section 1538.5 had neither the intent nor the effect of reviving the judicially created exclusionary rules abrogated by Proposition 8.  “We cannot assume that the Legislature understood or intended that such far-reaching consequences—virtually a legislative repeal of the ‘Truth-in-Evidence’ section of Proposition 8—would follow an amendment so casually proposed and adopted without opposition.”  (In re Lance W., supra, 37 Cal.3d at p. 894, 210 Cal.Rptr. 631, 694 P.2d 744.)

Section 1538.5, subdivision (d) is a statutory exclusionary rule.   Moreover, the subdivision is procedural in character, and does not create new grounds for the exclusion of evidence.   It simply requires prosecutors to exhaust existing statutory schemes for review if a motion to suppress is granted.  (People v. Willis, supra, 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281.)   Although the Legislature did not intend to revive a judicially created, substantive exclusionary rule (In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744), we do not reach the same conclusion with regard to a statutorily created, procedural exclusionary rule.   As the court stated in People v. Belleci, supra, 24 Cal.3d at page 887, 157 Cal.Rptr. 503, 598 P.2d 473:  “[T]he Legislature has ‘preempted’ the above-stated judicial function and enacted a ‘statutory exclusionary rule.’   But it is perfectly proper for the Legislature to enact such rules, i.e., to provide by statute that certain evidence, although relevant, shall be inadmissible for reasons of public policy.  [Citation, fn. omitted.]”  Therefore, the Legislature, by reenacting section 1538.5, subdivision (d) after the passage of Proposition 8, revived the statutory rule which requires prosecutors to utilize further proceedings if they desire to use suppressed evidence at probation revocation hearings.

Accordingly, the order revoking probation is reversed.

FOOTNOTES

FOOTNOTE.  

1.   All further statutory references are to this code unless otherwise specified.

2.   Section 1538.5, subdivision (j) provides, in pertinent 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․  If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanor case, it shall be binding upon them.”

3.   Section 1538.5, subdivision (d) provides as follows:  “If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, ․ are utilized by the people.”

4.   At Lopez' request, we take judicial notice that the suppression order was affirmed by the appellate department on June 25, 1986.

5.   Although not raised by either party, we note there is an apparent (and largely unmentioned) conflict of long standing among courts of appeal involving whether subdivision (d) has any effect where exclusion is sought in one case based on an earlier order of suppression in an unrelated case.  (Compare People v. Williams (1979) 89 Cal.App.3d 1026, 152 Cal.Rptr. 892;  People v. Gephart (1979) 93 Cal.App.3d 989, 156 Cal.Rptr. 489, and People v. Brewster (1986) 184 Cal.App.3d 921, 229 Cal.Rptr. 352 (holding it does not) with People v. Zimmerman, supra, 100 Cal.App.3d 673, 161 Cal.Rptr. 188;  People v. Willis (1983) 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281, and Buttimer v. Alexis (1983) 146 Cal.App.3d 754, 194 Cal.Rptr. 603 (holding it does).)   Since Gephart and Williams both preceded Belleci and relied on cases not involving section 1538.5 and were not based on the rules regarding statutory construction set forth in Belleci, we find the better reasoned view is that set forth in Zimmerman and Willis.   Additionally, in Belleci at page 888 the Supreme Court, by way of a dictum, implicitly requires that an order suppressing evidence pursuant to section 1538.5 made in one case be binding in a probation violation hearing in another case.

6.   “THE COURT:  1538.5(d), that you rely on, ․ does indicate that—that exception to that section says something about except as—well, to the aim against movement of a trial or other hearing unless further proceedings authorized by this section and several other sections are utilized by the People.  [¶ ] Doesn't that suggest, then, that since the People did in fact proceed according to—ask for appellate review that then this sub section [sic] (d) doesn't apply?[¶] ․[¶] I think—I think that—I don't think that 1538.5(d), I think it says exactly what it says and that is that I couldn't consider this if there was no appeal, but if there was an appeal, then I can consider it.   That's just as simple as that, that's the way I read it and you've got your record.”

BRADLEY, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

STONE, P.J., and ABBE, J., concur.