Saidi-Tabatabai v. Superior Court

Petitioner seeks a writ of mandate to compel respondent court to exercise its jurisdiction to hear her motion to suppress certain evidence.

Following a preliminary hearing, at which the evidence in question was admitted, petitioner was held to answer and an information has been filed charging her with first degree murder. Trial was set for May 8, 1967. On or about April 18, 1967, petitioner filed a motion to suppress two statements taken from her by the police, allegedly in violation of the Miranda rule, and evidence received from one Edward Eisen which it was contended was obtained by use of petitioner’s said statements. On April 27, 1967, the court denied the motion to suppress and dismissed the proceedings on the motion. Petitioner alleges that respondent court ruled that it had no jurisdiction to hear the motion. The trial has been continued until the disposition of this proceeding.

An alternative writ was issued by this court. No answer or return has been filed by respondent court. However, an answer and return was filed by the district attorney for the People of the State of California, as real party in interest. In this return it is alleged that petitioner is not entitled to the relief requested herein “for the reason that the respondent Superior Court had no power to grant it.” No authorities or judicial interpretations are cited for this position. It is also alleged that petitioner is not entitled to any of the relief sought because at the hearing in the trial court on her motion she produced no competent evidence in support thereof.

The initial question is whether respondent court, in fact, refused to exercise jurisdiction, or whether it assumed jurisdiction and its ruling, right or wrong, was made in the exercise thereof.

Petitioner’s motion was supported by her declaration and that of her attorney. At a hearing held on April 26 the court heard testimony from three witnesses on behalf of petitioner and received certain documents in evidence. The People filed no eounteraffidavits but. rather, at the commencement of the proceedings made the objection that “this procedure is not proper procedure to take at this time. I think the trial court is concerned with the questions of admissibility of evidence; that a motion to suppress any evidence, any rulings, should be determined by the trial court. I think that this is not a proper motion to bring before this Court. ’ ’ After some discussion the court told petitioner that “you may proceed at this time with

Petitioner’s counsel sought a stipulation that the declaration of petitioner and that of himself be considered their direct testimony. The deputy district attorney agreed as to the declaration of petitioner, subject to the right of cross-examination, but refused to so stipulate as to the attorney’s declaration upon the ground that his declaration contained nothing but hearsay. Petitioner’s counsel then requested that he be permitted to testify and the court ruled that he could “present any witnesses you wish.” The declaration of petitioner’s attorney, intended to show that petitioner had not been advised of her constitutional rights, and more particularly that she had not made a knowing and willful waiver thereof, consisted principally of quotations from various documents and reports he had received from the West Covina Police Department, such as the official crime report and detective bureau supplemental reports which, in turn, contained statements taken from various witnesses. The testimony of petitioner’s counsel consisted solely of his reading verbatim from his declaration. Upon objection, certain portions were eliminated and the witness was cross-examined. Two other witnesses (Officer Miller, the police officer in charge of the investigation, and Judy Lee Baird, a clerk-stenographer for the West Covina Police Department) were produced on behalf of petitioner and questioned concerning certain police reports and documents upon which petitioner relied as showing that she did not waive her constitutional rights. Some of the reports and documents were received in evidence. Throughout, the People objected upon the ground that not only were declarant’s statements hearsay, but that the documents were themselves hearsay and that petitioner must present direct evidence, with an opportunity to cross-examine the witnesses who made the statements and reports.

When the hearing resumed on the morning of April 27, the judge expressed concern as to the manner of the proceeding in this matter. He made reference to the new Evidence Code, and to the fact that when the question of admissibility of a confession is raised in the trial court the burden is on the district attorney to present evidence. He therefore expressed doubt as to whether the pretrial motion could be heard on affidavits, as to who has the burden of proof, and -whether his ruling would be res judicata. He said he thought there may be a distinction

“Mr. Picone [petitioner’s attorney] : Well now, just a moment, that’s a leading and suggestive question. Let the Court declare exactly on what basis he is denying my motion to suppress because this, your Honor knows, is going to become very important.

“The Court: It ought to be clear so far as each of you is concerned.

“Mr. Picone : Please, your Honor, for both of our sakes, sir, and for the sake of future law and procedure.

“Mr. Norman: Yes, sir, your Honor, in my arguments I mean I was not implying the Court did not have jurisdiction to hear the matter at this time. It was that I felt that the Court’s discretion should be exercised and in such a way that the matter should be heard before the trial court, ... I feel that the Court has the jurisdiction, hut I don’t feel that it’s the proper exercise of its discretion.

“Mr. Picone : Your Honor cannot be exercising, respectfully, its discretion because I haven’t rested. Your Honor doesn’t know what other evidence I have. The People have not. So, therefore, you are in effect saying I don’t have the right to this motion at this time, as I interpret your Honor’s ruling.

“The Court: This is what I am saying. ... I think the record should he clear that I am deciding that you do not have the right to this motion at this time. Therefore, in the event that I am wrong ... I would think that you should have adequate time to take this up to the District Court of Appeals. I think, furthermore, the issue ought to be decided whether this can be heard by way of affidavit or would require direct testimony of all witnesses. You see, what I’m worried about is the procedure we’re involved in. ... I think, too, that there is an issue of whether the ruling of the Court would be res judicata or not. If it is, it certainly makes a difference as to how it should be handled and who has the burden of proof on this particular issue on which there seems to be some dispute between counsel. I will make the ruling, and it’s based on the fact that I don’t think the Court has jurisdiction to hear this motion at this time under the present procedures as I understand them.” (Italics added.)

From the record it is clear that the court originally assumed jurisdiction, considered the declarations and heard testimony, but mid-hearing decided he had no power to proceed. “A court has jurisdiction to determine its own jurisdiction, for a basic issue in any ease before a tribunal is its power to act, and it must have authority to decide that question in the first instance.” (Rescue Army v. Municipal Court, 28 Cal.2d 460 , 464 [ 171 P.2d 8 ].) This is not a situation where jurisdiction depended upon the sufficiency of certain facts, and the evidence received was not pertinent to that question. Nevertheless, before completing the hearing the court decided, as a matter of law, that petitioner had “no

If the petitioner had no right to maintain the motion, that is one thing; but, if the court refused to proceed simply because there is no established procedure, statutory or otherwise, that is quite another. As stated in 1 Within, California Procedure (1954), Jurisdiction, section 163, pages 430-431: “Constitutional appellate jurisdiction (and, presumably, any constitutionally granted jurisdiction) must be exercised even though no procedure has been provided therefor. The court must make the jurisdictional grant effective by adoption of an appropriate rule of practice. (People v. Jordan (1884) 65 Cal. 644 , 646 [ 4 P. 683 ].)” (See also, Code Civ. Proc., §187, under which a court having jurisdiction has the power to adopt any suitable mode of procedure to carry that jurisdiction into effect.) “The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty. This is so even where the trial court’s refusal to pass on the merits is based on the considered but erroneous belief that it has no jurisdiction as a matter of law to grant the relief requested.” (Robinson v. Superior Court, supra, 35 Cal.2d 379 , 383; see also, People v. Superior Court, 239 Cal. App.2d 99 , 102-103 [ 48 Cal.Rptr. 455 ] ; Schaefer v. Superior Court, 113 Cal.App.2d 428 , 438-439 [ 248 P.2d 450 ] ; Turesky v. Superior Court, 97 Cal.App.2d 838 [ 218 P.2d 784 ] ; Gering v. Superior Court, 37 Cal.2d 29 [ 230 P.2d 356 ] ; In re Brumback, 46 Cal.2d 810 [ 299 P.2d 217 ].)

Since a court may be required to determine on its merits a matter which is properly before it, the question is whether petitioner has a right to a pretrial motion to suppress statements allegedly taken in violation of constitutional rights.

It is well settled that a pretrial motion lies to suppress evidence obtained by illegal search and seizure even in the absence of statutory authority. “A motion to suppress evidence is a means provided by our practice for determining the question of admissibility of evidence in advance of the time it

As stated in Within, California Evidence (1966), section 60, page 63: “Pursuant to the court’s declared intention in the Calían case (to develop workable rules of procedure), the federal practice of a pretrial motion to suppress the evidence was held proper, though not mandatory.” (See People v. Berger, 44 Cal.2d 459 , 463 [ 282 P.2d 509 ] ; People v. Justice Court, 185 Cal.App.2d 256 , 258 [ 8 Cal.Rptr. 176 ]; People v. Gershenhorn, 225 Cal.App.2d 122 , 124 [ 37 Cal.Rptr. 176 ].) There is no express statutory authority for the motion. Penal Code, section 1540, provides that if property is seized under a void warrant, or if it is not the property described in the warrant, “the magistrate must cause it to be restored to the person from whom it was taken.” An order for return, based on a finding of unlawful seizure, would have the same effect as a direct order for suppression. (See People v. Gershenhorn, supra, 225 Cal.App.2d at 125, fn. 2 .)

In Gershenhorn v. Superior Court, 227 Cal.App.2d 361 [ 38 Cal.Rptr. 576 ], it was held that the same remedies must be afforded one whose property was illegally seized although no warrant was involved. The court in the first Gershenhorn case (225 Cal.App.2d at p. 124) sets forth the statutory and the “workable rules of procedure” developed by the court with regard to illegally seized evidence : “A person whose property has been seized unlawfully by a law enforcement agency is afforded a variety of remedies, one or more of which he may pursue, depending on the specific result he desires and his counsel’s decision as to tactics and strategy:

“ (1) He may move, before trial, to suppress the evidence as was done here. If that motion be denied, or even if no such motion had been made, he may object to the introduction of the evidence either at the preliminary examination or at the trial. If objection is made and overruled at the preliminary examination, he may review that action by a motion made

United States v. Skeeters (S.D.Cal. 1954) 122 F.Supp. 52 , involved a motion pursuant to rule 41 to suppress evidence and have returned to defendant a certain statement signed by him while in custody, upon the grounds that at the time the statement was given the defendant was being illegally detained and the circumstances of taking the statement amounted to coercion. While the prosecution did not challenge the power of the court to grant the relief requested, it was contended that the matter should have been made the basis of an objection at the trial and not the basis of a pretrial motion. In rejecting this contention, the court stated (pp. 58-59) : “To interrupt a criminal trial to give the matter the amount of time necessary to an effective study of the facts and law involved, would be contrary to every precept of the requirements of the speedy and economical administration of justice.

Federal rules of procedure are, of course, not binding on our state courts, but a reading of the above cases will disclose the reasoning of the various courts in adopting the rule. (See also 5 Stan.L.Rev. 529 , which discusses the problem and sets forth arguments both for and against the pretrial suppression of such evidence.)

It appears to us that, in the absence of statutory prohibition or limitation, the trial court has jurisdiction to entertain the motion. This does not mean that it was bound to exercise that jurisdiction. Whether or not to entertain a motion such as the one under consideration before the commencement of the trial should be a matter within the sound discretion of the trial court and we would not presume to indicate which way that discretion should be exercised in the present case. Here, as in all other cases, many factors are present—some unknown to us—which the trial court may legitimately take into consideration.

In view of the fact that any ruling on the admissibility of an admission or confession made at such a motion is not binding on the court if the People again offer the evidence at the trial (People v. Beasley, 250 Cal.App.2d 71 [ 58 Cal. Rptr. 485 ]) it is perhaps a rare case where a trial court would conclude that it would be in the interest of an orderly procedure to exercise its discretion in favor of a pretrial motion. Yet, we see no reason why a holding that it does not even have jurisdiction to do so, should deprive it of what may on occasion be a valuable tool in the efficient administration of justice.

Since the greater includes the lesser, it is clear that another

The peremptory writ of mandate is granted, with directions to the respondent court to exercise its discretion in the premises in conformity with the views expressed in this opinion.

Kaus, P. J., and Stephens, J., concurred.