PEOPLE v. FISHER (1982)

People appealed to the superior court from a dismissal by the municipal court of a criminal action against defendant after granting defendant's “motion to suppress”.   We transferred the matter to this court.  (Cal.Rules of Court, rule 62(a).)

The People contend that (1) the trial court erred in granting the suppression motion without hearing any evidence to support a finding of an unlawful search and seizure, (2) the trial court abused its discretion in ordering the evidence suppressed and then dismissing the case when the prosecution would have been ready to proceed on the suppression motion within the statutory time period for trial pursuant to Penal Code section 1382, and (3) the dismissal cannot be justified as having been made pursuant to Penal Code section 1385.

We agree with the People's contentions and reverse the matter.

On March 6, 1980, defendant was arrested on misdemeanor charges of unlawful possession of a controlled substance.   He was released on bail the next day.   He appeared on March 20 before the municipal court for arraignment on the misdemeanor charge.   There he “waived time” and at his request the arraignment was continued to March 24.   He remained on bail.   On March 24, further arraignment was conducted and defendant pleaded not guilty.   Trial was set for April 24.   On the day set for trial the parties were present and the People were ready to proceed.   However, at that time, and again at defendant's request, the matter was trailed to April 28 to enable defendant to subpoena witnesses.   On April 28 the matter was called in division 40, the parties answered ready and the case was assigned to division 54 for trial.   On arrival in division 54 for trial, defendant purported to make a motion to suppress.   The record contains a printed form dated March 20 on which a check mark appears at a pre-printed paragraph stating “defense counsel in open court orally notifies city attorney that the defense will make a motion pursuant to Penal Code section 1538.5 at the time of trial.”  “That which the defense seeks to suppress is:  _”  The space was left blank.   No such motion was made on the day set for trial, April 24, but instead four days later on April 28 after the case had been sent out to trial.   The record indicates such “motion.”   Defendant states that he “noticed a motion to suppress.”   It is uncertain exactly what that is intended to describe.   On that same day the People stipulated that there was no search warrant or arrest warrant.   The matter was continued to May 2 for “hearing”, apparently of what everyone seemed to treat as a motion duly made by defendant.

The hearing on May 2 was scheduled for 9 a. m.   At that hour, when the matter was called, the People's witness (the police officer) had not yet appeared.   Although subpoenaed the officer did not learn of the need to be in court until the day and after the hour on which he was due in court.   When he finally arrived, it was discovered that he was not the arresting officer.   The docket entry of May 2, 1980 reads as follows:  “Division 54 convened at 11:45 a. m.   Cause called.   Judge Abby Soven presiding.   Both parties ready.   People represented by B. Cardoz, H. Gluck (D.C.A.).   Defendant not in court but represented by E. Shumsky, DPD.   Marc Boyer, Deputy Clerk.

“Defendant having been in court at 9:00 a. m. and People unable to proceed at 9:25 and 9:55 a. m. and People's witness now in court offering an explanation for nonappearance, Defense section 1538.5 P.C. Motion is granted․”  The matter was “continued stayed” to June 22 apparently to allow the prosecution time to petition for writ or to appeal the ruling.  (Pen.Code, § 1538.5(l ).)

The People immediately requested the court to reconsider its suppression order and requested a continuance of the hearing to any other time convenient to the court so that the People could proceed.   The court refused the request and the order remained as indicated by the Minutes.   No petition for writ or appeal therefrom was taken by the People.   On June 4 the People advised the court that they were unable to proceed to trial and the case was dismissed.

DISCUSSION:

1. Lack of Hearing and Deficiency of the Motion

Preliminarily, we observe that the court's order and the defendant's alleged motion were both nullities.   As a consequence, the People could have proceeded to trial with whatever evidence they had.   Nothing was truly suppressed.   Thus, a correct interpretation of the order and a more sanguine attitude on the part of the People's attorney possibly would have resulted in such trial.   The order neither listed nor specified any item of evidence nor did the so-called motion describe any evidence which was to be suppressed.   Nonetheless, the People's attorney apparently interpreted the order as embracing any and all evidence incident to and following defendant's arrest and hence concluded that the People could not proceed to trial.

 Accordingly, when so advised, the court dismissed the action.   This was an erroneous assumption on the part of the prosecution.   Understandably, counsel do not wish to flirt with contempt nor incur the wrath of the court by ignoring its order or the clear meaning thereof.   However, at bench there was no clear meaning or understandable scope of the order.   The People did not seek to test the order by immediate petition for writ or appeal therefrom.   Such test, however, is not mandatory nor is failure to so proceed a bar to this appeal.   The parties appear to have treated the matter as one where the trial court's order of suppression included evidence needed by the prosecution for trial and the People's inability to proceed was due to the unavailability of such evidence.   Accordingly, although the interpretation placed on the court's order and the course of action taken by the People may have been incorrect, the People may nonetheless test the suppression order upon appeal from the dismissal resulting from the wrongfully granted order of suppression.   (Pen.Code, § 1538.5(j).)

 When a defendant makes a motion pursuant to 1538.5 for the suppression of evidence, it is his obligation to comply with the established statutory and decisional rules applicable to motions in criminal cases.   (People v. Manning (1973) 33 Cal.App.3d 586, 109 Cal.Rptr. 531.)   Merely “noticing” a motion or renewing a prior oral advisement that defendant will or intends to make such motion is not enough.  (Smith v. Superior Court (1978) 76 Cal.App.3d 731, 143 Cal.Rptr. 109.)   The defendant bears the burden of making a proper motion.  (People v. Carson (1970) 4 Cal.App.3d 782, 785, 84 Cal.Rptr. 699.)   We are not talking about a trivial formality or exalting form over substance.   The manner of giving formal notice, whether oral or written ¹ and whether prior filing is required, should not be confused with “the more substantial requirement as to all suppression motions that they give a clear and specific indication of the evidence to be suppressed and the grounds for the suppression.”  (People v. Manning, supra, 33 Cal.App.3d 586, 598, 109 Cal.Rptr. 531.)   Defendant also has the burden of going forward with the proof of each fact essential for establishing the right for such relief.   (People v. Manning, supra.)   This includes proof of the existence of the seized evidence, “tangible or intangible.”

 The proof as well as the motion must identify and apply to specifically itemized or defined or reasonably described particular evidence to be suppressed.  (People v. O'Brien (1969) 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969;  People v. Richards (1977) 72 Cal.App.3d 510, 140 Cal.Rptr. 158;  People v. Carson, supra, 4 Cal.App.3d 782, 84 Cal.Rptr. 699;  People v. Manning, supra, 33 Cal.App.3d 586, 598, 109 Cal.Rptr. 531;  People v. Tremayne (1971) 20 Cal.App.3d 1006, 98 Cal.Rptr. 193;  People v. Wolder, (1970) 4 Cal.App.3d 984, 84 Cal.Rptr. 788;  Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 68 Cal.Rptr. 530.)

In People v. Manning this court, citing Mestas v. Superior Court (1972) 7 Cal.3d 537, 102 Cal.Rptr. 729, 498 P.2d 977 and Badillo v. Superior Court (1956) 46 Cal.2d 269, 294 P.2d 23, recognized that such cases have expressed the oft-repeated rubric:  When a defendant establishes a search or seizure without a warrant of arrest or a search warrant, he makes out a prima facie case and the duty or burden of going forward then shifts to the People.   The People must then justify the arrest or seizure.  (See also People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135;  People v. Superior Court (Abrahms) (1976) 55 Cal.App.3d 759, 127 Cal.Rptr. 672;  People v. Villalva (1973) 33 Cal.App.3d 362, 109 Cal.Rptr. 16 for other examples.)   But this rubric is only part of a formula that assumes the presence of other elements.   It is based upon the view that a warrantless search is per se unreasonable under the Fourth Amendment subject only to a few well-delineated exceptions.  (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454–455, 91 S.Ct. 2022, 2031–2032, 29 L.Ed.2d 564;  Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290.)   Where the rubric is applicable, the other essential prerequisites to shifting any burden from the defendant to the People are (1) a proper motion, (2) specifically described evidence therein, (3) proof of the existence of such evidence, and (4) proof that the evidence sought to be suppressed is the product of the warrantless search or warrantless arrest.   Absence of warrant does not alone establish these other necessary elements.

 Accordingly, at bench the People's stipulation made at an earlier time only that there was no warrant gave no authority to the court to suppress any evidence.   The other elements of the showing required of defendant were absent.   Therefore, the stipulation that there was no warrant of arrest did not fulfill defendant's burden of establishing at least a prima facie case.   Defendant may not rest on such stipulation alone to thus cast the burden upon the prosecution.  (People v. O'Brien, supra, 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969;  People v. Tremayne, supra, 20 Cal.App.3d 1006, 1013, 98 Cal.Rptr. 193.)   As [then Appellate] Justice Kaus said in People v. Richards :  “An arrest alone is utterly irrelevant.   All that matters is whether the illegal arrest resulted in tainted evidence.”  (People v. Richards, supra, 72 Cal.App.3d 510, 514, 140 Cal.Rptr. 158.)

In all cases where the court has expressly held that the absence of a warrant of arrest or search warrant established a prima facie case for the defendant the other needed elements of the defendant's showing were present.   They were not cases simply where an arrest without warrant was established and nothing more.   In Badillo v. Superior Court, supra, 46 Cal.2d 269, 294 P.2d 23, the defendant established the breaking into a home, the seizure of the particular evidence produced, and that it resulted from such entry.   In Mestas v. Superior Court, supra, 7 Cal.3d 537, 102 Cal.Rptr. 729, 498 P.2d 977, the evidence presented disclosed an entry into a car trunk from which particular evidence was seized.   In People v. Superior Court (Abrahms), supra, 55 Cal.App.3d 759, 127 Cal.Rptr. 672, the defendant established seizure of particularly described papers consisting of bank records produced in evidence.   In People v. James, supra, 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135, the testimony disclosed how the illegal observation of stolen property occurred.   The property was shown to be a particular television set taken in the robbery.   In cases such as these, the evidence was described and was established to have been the product of an illegal search or arrest.

By contrast, in the cases where there has been no testimony or other proof of what the evidence is or proof that such particular evidence was the product of a warrantless arrest, entry, search or seizure, there has been no shift of the burden from the defendant to the prosecution.   In such cases the defendant has not yet met his burden, and the People need not assume any burden at that point.  (People v. O'Brien, supra, 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969;  People v. Wolder, supra, 4 Cal.App.3d 984, 995, 84 Cal.Rptr. 788;  People v. Tremayne, supra, 20 Cal.App.3d 1006, 98 Cal.Rptr. 193;  Thompson v. Superior Court, supra, 262 Cal.App.2d 98, 103–104, fn. 3, 68 Cal.Rptr. 530.)

2. Failure to Raise Issues in Trial Court

Defendant states:  “Appellant's assertion that the grounds for the motion to suppress and the items to be suppressed were never specified in defendant's motion is made for the first time on appeal.   Counsel for appellant in the court below raised no such objection at the time the motion was made and at no time requested specification of the grounds of the motion or items to be suppressed.”

 Defendant misconceives the entire aspect of the proceedings below and the parties' respective duties.   Initially, as shown, there was no proper motion by him.   Additionally, there was in fact no hearing.   Assuming the proceedings and appearances before Judge Soven constituted a “hearing”, it was not the People's burden or obligation to demand or request that evidence be particularly identified or to explain the insufficiency of the motion.   It was defendant's initial burden to properly present the motion and identify and describe the property.   Under the circumstances of this case, we do not accept defendant's argument.   There was no hearing at which to attack the insufficiencies.

The matter at bench was not one involving merely the exercise of discretion in ordinary rulings on the admission or exclusion of evidence during regular trial.   Nor was this a case of properly refusing to grant a party additional time to obtain additional evidence, because of an untimely request in the middle of trial.  (People v. Duck Wong (1976) 18 Cal.3d 178, 189, 133 Cal.Rptr. 511, 555 P.2d 297.)   Here the act of the court was one involving a serious question of its jurisdiction and the due administration of justice.   The jurisdictional question is raised by the act of the court in compelling the People to proceed first under threat of granting suppression if they did not.   Before any proper motion was made, without any hearing taking place and nothing being produced by defendant and the court not receiving evidence although required by Penal Code section 1538.5(c) ² , the trial court warned the People:  “If the witnesses are not here at 9:35,³ I am going to grant the defense motion to suppress.”   The trial court thereafter granted the motion for the reasons stated in the order:  “Defendant having been in court at 9:00 a. m. and People unable to proceed at 9:25 and 9:55 a. m. and People's witness now in court offering an explanation for non-appearance, Defense § 1538.5 P.C. motion is granted.”   This was not merely a change in the order of proof which a trial court generally has the right to make.   It was the use of a procedure and standards contrary to the statute and the decisional law as we have explained above.   The trial court thus wrongfully changed the respective burdens of defendant and the People and threatened to use the order of suppression as a sanction to compel obedience to its view that the People were required to “proceed.”   That the order of suppression was more a sanction than a ruling after receipt of evidence at a hearing is hinted, if not clearly demonstrated, by the court's remarks to the deputy city attorney “․ we have spent some time in this court ․ trying to make clear that when we say 9:00 a. m. for a 1538.5, 9:00 is the time that is intended” and by actually making the so-called “suppression order” irrespective of the absence of the necessary elements of defendant's case which we have earlier described.

 The general rule that an issue not raised or argued in the trial court may not for the first time be raised and considered on appeal (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640, 108 Cal.Rptr. 585, 511 P.2d 33) should not deter this court from examining important questions of jurisdiction or abuse of discretion, especially where the matter involves great public interest or the due administration of justice.  (People v. Kitchens (1956) 46 Cal.2d 260, 262, 294 P.2d 17.)   Even though seemingly within its discretion or allowed under literal application of statute, where the potential harm to the administration of justice from a judgment or order exceeds any benefit, an appellate court may and properly should consider the result and its basis in order to prevent a great injustice.   A reviewing court may review and should temper or change an order or technical application of the law where necessary to achieve reasonable, proportionate and just results intended by the law.  (Hale v. Morgan (1978) 22 Cal.3d 388, 149 Cal.Rptr. 375, 584 P.2d 512.   In such cases the absence of prior presentation of the issue to the trial court is no bar to appellate review.  (6 Witkin, Cal. Procedures, Appeal, § 280, p. 4629;  People v. Bolinski (1968) 260 Cal.App.2d 705, 67 Cal.Rptr. 347.)

3. People's Request to Continue—Relevance of Penal Code Section 1382

We next consider the relevance, if any, of the fact that the time for trial had not expired.  (Penal Code, § 1382.)   Assuming defendant's earlier “waiver of time” did not apply, defendant was entitled to be tried within 45 days from date of his arraignment.

 A continuance date within the specified time limits does not render the case subject to dismissal.  (People v. Rubaum (1980) 110 Cal.App.3d 930, 168 Cal.Rptr. 291;  People v. Arnold (1980) 105 Cal.App.3d 456, 164 Cal.Rptr. 367;  People v. Hernandez (1979) 97 Cal.App.3d 451, 158 Cal.Rptr. 742;  People v. Kessel (1976) 61 Cal.App.3d 322, 132 Cal.Rptr. 126.)   Further, assuming a valid motion was made, defendant purported to make it on April 28, four days after the date originally set for trial.   This continuance from April 24 to April 28 was at defendant's request.   The trial due to start on April 28 was again delayed by defendant's own eleventh-hour act that “the matter [be] set for hearing on the defense motion under Penal Code section 1538.5.”   The trial court acted on the premise that it could not proceed to trial but had before it preliminarily a “motion” to suppress and thus continued the entire matter to May 2, four days later, because of defendant's “motion” to suppress.   If on the other hand the trial had started on the day set therefor and the People had then asked for a brief continuance to start trial another day, but within the 45-day period as required by Penal Code section 1382, subparagraph (3), a dismissal by the court merely because of such People's request for a continuance would have been an abuse of discretion and prejudicial error.  (People v. Rubaum, supra, 110 Cal.App.3d 930, 168 Cal.Rptr. 291;  People v. Arnold, supra, 105 Cal.App.3d 456, 164 Cal.Rptr. 367;  People v. Hernandez, supra, 97 Cal.App.3d 451, 158 Cal.Rptr. 742;  People v. Kessel, supra, 61 Cal.App.3d 322, 132 Cal.Rptr. 126.)

 Although the continuances granted in the above-cited cases was with reference to the actual trial, the fact that the request at bench concerns a suppression motion instead should not make a difference.   A sense of fair play and doing justice to both sides requires that the People's one reasonable request to continue, to a time convenient to the court, within the 45 days should have been granted.   The unevenhandedness of the court is especially highlighted in view of the several continuances given to defendant.

4. The Dismissal Was Not in the Interest of Justice Under Penal Code Section 1385

 The dismissal followed the suppression motion.   The record is clear that the view of the prosecuting attorney (even if erroneous) was that whatever evidence was available to the People had been suppressed.   But it is also reasonably presumable that such was also the view taken by the trial judge.   We presume that she intended that the order make sense and have efficacy and thus apply to particular evidence.   But unfortunately the judge did not describe or limit her order to any particular evidence.   We therefore further presume that she too intended her order to apply to all evidence available to the prosecution.   Without available evidence the People were unable to proceed to trial.   Thus the dismissal was in fact caused by and based upon the court's order granting the motion to suppress.   As such, the order of dismissal was not justified under Penal Code section 1385.

In dismissing a case pursuant to Penal Code section 1385, a court is compelled to act “in furtherance of justice.”  “The court may ․ in furtherance of justice, order an action to be dismissed.”  (Pen.Code, § 1385.)   Though “furtherance of justice” is not defined by statute, a number of principles have emerged from case law:  “Paramount among them is the rule ‘that ․ “furtherance of justice” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.  [Citations.]’  (Emphasis in original.)  (People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65, 533 P.2d 193.)   In making its “furtherance of justice” determination, the trial court is required to consider the harm of prejudice suffered by defendant.  (People v. Orin, supra, 13 Cal.3d 937, 947, 120 Cal.Rptr. 65, 533 P.2d 193.)

The dismissal in the instant case was clearly predicated on reasons other than those deemed adequate under Orin and its progeny.   The defense made no claim of prejudice nor could it where as here the witness was present in court within one hour and fifteen minutes of the appointed time.

A judge's concern with obedience to his orders, in the context of the orderly flow of work within his own trial court, cannot justify the dismissal of a criminal complaint.   As People v. Mack (1975) 52 Cal.App.3d 680, 684, 125 Cal.Rptr. 188, held:  “a dismissal founded only on the congestion of the court's calendar is not one ‘in the furtherance of justice.’ ”   As we have indicated earlier by the remarks of Judge Soven, the dismissal in the instant case occurred on motion of the judge for reasons suggesting she was concerned primarily with work flow within her own court, and to impress upon the city attorney that he was responsible for the failure of a police officer to appear as a witness.

A finding of prejudice suffered by the defendant, though essential to support a lawful dismissal pursuant to Penal Code section 1385, was never made.

Having failed to balance the interests of the People against those of the defendant, the court's dismissal was a clear abuse of discretion.   “․ [A]ppellate courts have shown considerable opposition to the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged.   Courts have recognized that society, represented by the People, has a legitimate interest in ‘the fair prosecution of crimes properly alleged.’  [Citation.]  ‘[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ ”  (People v. Orin, supra, 13 Cal.3d 937, 946–47, 120 Cal.Rptr. 65, 533 P.2d 193.)

The judgment of dismissal is reversed and the cause remanded to the municipal court to vacate its order of suppression and for further proceedings consistent with this opinion.

FOOTNOTES

1.   In his thorough explanation of the requirements under Penal Code section 1538.5, Justice Compton speaking for this court in People v. Manning has suggested the proper practice to be adopted and observed in making such motion.   Although not here mandatory under the statute, a well-prepared written motion would obviate the problems incurred in this case.   Accordingly, some courts have adopted a rule requiring that even in misdemeanor matters such motion should be in writing and such local rule is not only lawful and proper but is desirable to avoid problems as in the present case.  (People v. Lewis (1977) 71 Cal.App.3d 817, 139 Cal.Rptr. 673.)

2.   Penal Code section 1538.5 subparagraph (c) reads:  “Whenever a search or seizure motion is made in the municipal, justice or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.”

3.   The court exaggerated the prosecutor's duty or ability to obtain or assure the appearance of police officer-witnesses in court.  (Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 560, 161 Cal.Rptr. 704.)

BEACH, Associate Justice.

ROTH, P. J., and COMPTON, J., concur. Hearing denied; BIRD, C.J., dissenting.