People v. Nelson

purpose of Penal Code section 1538.5 and discourage parties from presenting all arguments relative to the question when the issue of admissibility of evidence is initially raised.” (Lorenzana v. Superior Court (1973) 9 Cal.3d 626 , 640 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ]; italics added.) That observation is equally valid in the context of pretrial proceedings, where allowing a defendant to raise each of the grounds for suppression at a separate hearing would result in inefficient use of court time, potentially duplicative presentation of evidence, and the possibility of a delayed trial.

There is nothing in the record to indicate that, at the time of his first suppression hearing, defendant was unaware of the ground later raised at the second hearing, i.e., the insufficiency of the supporting affidavit. Obviously, defendant should have raised that ground at the first hearing. If that ground was unavailable or unknown at the time of the first hearing, then the proper procedure would have been to raise the issue at trial under subdivision (h). (People v. O’Brien, supra, 71 Cal.2d 394 , 403.) In People v. Dubose, supra, 17 Cal.App.3d 43 , the court expressly refused to extend the statutory exception of subdivision (h) to allow a second pretrial motion based on newly discovered evidence. In Dubose, the defendant predicated a second section 1538.5 motion on evidence derived from a habeas corpus hearing held subsequent to his first motion. The court emphasized that the subdivision (h) exception for lack of opportunity or unknown grounds applies “only where the motion is made for the first time at trial.” (Id., at p. 47.)

Lacking statutory authority for a second pretrial hearing in this case, defendant first urges that the policy reasons behind the enactment of section 1538.5 support allowing it. The legislative history of the section reveals no convincing support for his position.

Recently, in People v. Brooks, supra, 26 Cal. 3d 471 , the California Supreme Court noted that section 1538.5 was enacted priniarily to redress three deficiencies in previously existing procedures: “(i) the unnecessary expenditure of time and effort in allowing repeated challenges to the legality of a search or seizure during the course of a criminal proceeding; (ii) the waste of jury time in permitting search and seizure questions to be raised during trial, since the determination of these issues takes place outside the presence of the jury; and (iii) the lack of adequate opportunity for the prosecution to obtain appellate review of an adverse decision on a search and seizure question before trial commences and jeopardy attaches. [Citations.]” (Id., at pp. 475-476,

citing 22 Assem. Interim Com. Rep. (1965-1967) No. 12, Search and Seizure, pp. 13-16, 2 Appen. to Assem. J. (1967 Reg. Sess.).) Obviously, a second pretrial hearing would not waste jury time, and, subject to their available manpower to prosecute multiple appeals, the People’s right under subdivision (o) to appeal from an adverse decision would remain unaffected. To that extent then, a second pretrial hearing might be considered consonant with legislative policy. However, a second hearing flies directly in the face of a declared legislative purpose of preventing the unnecessary expenditure of time resulting from multiple suppression hearings. Allowing 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. (See People v. Superior Court (Green), supra, 10 Cal.App.3d 477 , 480-481.) We are not persuaded by defendant’s argument on this point.

Defendant claims, also, that the facts of this case fall within the rule of People v. Brooks, supra, 26 Cal. 3d 471 , which allows a second pretrial suppression hearing in certain circumstances in order to afford a defendant a full hearing. He reads the holding in that case too broadly.

In Brooks, a defendant moved to suppress evidence obtained pursuant to a search warrant, challenging both the warrant’s validity and its execution. At the hearing, the trial court granted the motion solely on the ground of the warrant’s invalidity. Having thus disposed of the motion, the court then refused to hear defendant’s alternate ground concerning the warrant’s execution. The court dismissed the action pursuant to section 1385, and the People appealed from the dismissal, obtaining a reversal. Defendant then filed a second motion, renewing his prior challenge to the warrant’s execution. Again, the court granted the motion and dismissed the action. On appeal from this second dismissal, the People contended that the court lacked jurisdiction to entertain the second motion. The Supreme Court disagreed. Noting that “[d]uring the first hearing defendant lacked opportunity for a full determination of the merits of his motion as originally made and noticed,” the court held that “the trial court had jurisdiction to entertain defendant’s renewed motion for the purpose of affording him the full hearing to which he was initially entitled.” (People v. Brooks, supra, 26 Cal.3d at p. 475.)

Despite some factual similarity, Brooks is entirely distinguishable from this case. The crucial distinction is that in Brooks the defendant

had raised all potential challenges to the search and seizure in his initial motion so that when the trial court declined to consider one of the grounds raised, the defendant was, in a real sense, deprived of a full hearing. The court in Brooks emphasized that “it was always defendant’s intention to move to suppress on both grounds” (People v. Brooks, supra, 26 Cal.3d at p. 480) and further stressed, “The significant observation is that the court, having suppressed the evidence on one ground, was unwilling—indeed, deemed it unnecessary—to consider the alternate ground urged for suppression. Thus defendant was deprived of an opportunity for a full hearing on the merits of his entire motion to suppress as initially made” (Id., at pp. 480-481; italics added.) In contrast to Brooks, the defendant here raised a ground for suppression at the second hearing which was not raised at the first. Hence defendant’s second hearing was not a completion of his first motion “as initially made” (id., at p. 481) or, as phrased earlier in the Brooks opinion, “as originally made and noticed” (id., at p. 475). Brooks, therefore, is inapplicable to the present case.

We conclude that, having failed to show good cause why the sufficiency of the affidavit offered in support of the search warrant was not challenged at the initial section 1538.5 hearing, defendant was not entitled, under section 1538.5, to a second pretrial suppression hearing, and that the trial court acted in excess of its jurisdiction in hearing such second motion; moreover, that the facts of defendant’s case do not fall within the exception announced in People v. Brooks, supra, 26 Cal.3d 471 .

The order dismissing the action is reversed. The trial court is directed to set aside the order quashing the search warrant and suppressing evidence and to resume further proceedings.

Miller, J., and Smith, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied February 25, 1982.