Los Angeles Chemical Co. v. Superior Court

party in interest, the People of the State of California, for reinstatement of the complaint. (Pen. Code, § 871.5.) The preliminary hearing resumed; petitioners were held to answer, and an information was filed.

Petitioners now seek a writ of prohibition against further prosecution on the grounds that (1) the People’s motion for reinstatement of the complaint was untimely, and (2) the magistrate properly had suppressed the evidence seized during a warrantless inspection conducted by officials of the Los Angeles County Department of Health Services. The People, as real party in interest, contend in response that petitioners may not seek writ review of the order reinstating the complaint, because petitioners failed to move in superior court to set aside the information. (Pen. Code, § 995.) For the reasons that follow, we deny the petition for writ of prohibition.

Procedural History

Petitioners Los Angeles Chemical Company, Allen Klingensmith, and Ned Blaine were charged by felony complaint with five counts of illegal disposal of hazardous waste in violation of Health and Safety Code section 25189.5, subdivision (b).^[1] Petitioners moved to suppress evidence pursuant to Penal Code section 1538.5. On June 14, 1989, the magistrate granted the, motion to suppress evidence and dismissed the case, apparently pursuant to Penal Code section 871.

On June 29, 1989, the People filed a motion in superior court, pursuant to Penal Code section 871.5, for reinstatement of the complaint. This motion was personally served on counsel for petitioners the following day, June v 30th.

On October 27, 1989, respondent superior court granted the motion for reinstatement of the complaint. The preliminary hearing was resumed and, on January 16, 1990, the magistrate held petitioners to answer. An information was filed January 19, 1990, and on February 28, 1990, petitioners filed the instant petition for writ of prohibition. (Pen. Code, § 999a.)

Discussion

Petitioners Are Precluded From Seeking Writ Review of the Order Reinstating the Complaint by Their Failure to Move to Set Aside the Information Filed After the Preliminary Hearing Was Resumed and They Were Held to Answer on the Reinstated Complaint

Penal Code section 871.5, subdivision (f), states in pertinent part: “If the motion to reinstate the complaint is granted, the defendant may seek review thereof only pursuant to Sections 995 and 999a. Such review may only be sought in the event the defendant is held to answer pursuant to Section 872.” The final paragraph of section 871.5 further provides: “If the superior court grants the motion for reinstatement and orders the magistrate to issue an order of commitment, the defendant, in lieu of resumed proceedings before the magistrate, may elect to waive his or her right to be committed by a magistrate, and consent to the filing of an amended or initial information containing the reinstated charge or charges. After arraignment thereon, he or she may adopt as a motion pursuant to Section 995, the record and proceedings of the motion taken pursuant to this section and the order issued pursuant thereto, and may seek review of the order in the manner prescribed in Section 999a.”^[2]

Upon the granting of a People’s motion for reinstatement of the complaint, a defendant wishing to challenge the ruling thus has two options: (1) to consent to the filing of the information and, following arraignment, treat the “record and proceedings of the motion [for reinstatement] and the order issued pursuant thereto” as a motion pursuant to Penal Code section 995, and seek review of that order by filing a petition for writ of prohibition pursuant to Penal Code section 999a, or (2) to complete the preliminary hearing; if held to answer, move to set aside the information pursuant to Penal Code section 995, and, if that motion is denied, seek review of that order by filing a petition for writ of prohibition pursuant to Penal Code section 999a.

In the present case, petitioners elected the second alternative by allowing the preliminary hearing to resume following the granting of the People’s motion for reinstatement of the complaint. Petitioners were held to answer and, after an information was filed, were arraigned. Petitioners then filed

the instant petition for writ of prohibition, failing to comply with the requirement of Penal Code section 871.5, subdivision (f), that they first make a motion in the superior court, pursuant to Penal Code section 995, to set aside the information.

Petitioners contend they should not be required to bring a motion pursuant to Penal Code section 995 prior to seeking writ relief because doing so “would be tantamount to renewing a § 995 motion without showing any ‘changed circumstances,’ ” in violation of the rule announced in In re Kowalski (1971) 21 Cal.App.3d 67 [ 98 Cal.Rptr. 444 ].

In Kowalski, the defendant’s motion to set aside the indictment pursuant to Penal Code section 995 was granted and the case dismissed. Subsequently, another judge of the same court ruled that the previous order of dismissal was invalid and reset the case for trial. The Court of Appeal granted a writ of habeas corpus and ordered the defendant discharged from custody, concluding the second judge had erred in considering matters already ruled on by another judge of the same court “without any showing of changed circumstances.” (21 Cal.App.3d at pp. 70-71.)

Petitioners contend the holding in Kowalski is applicable to the present case. A similar argument recently was rejected in Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495 [ 265 Cal.Rptr. 587 ]. The trial judge in Sandco granted a new trial on the ground that another department of the trial court had imposed an erroneous discovery cutoff date which constituted an irregularity in the proceedings, depriving the defendant of a fair trial within the meaning of Code of Civil Procedure section 657, subdivision l.^[3] The Court of Appeal rejected the argument that the holding in Kowalski prohibits a trial judge from granting a new trial based upon the conclusion that a different department of the same court had made an erroneous ruling. The appellate court stated: “Section 657, subdivision 1, authorizes the trial judge to grant a new trial based on a finding of irregularity in the proceedings of ‘the court.’ When a trial judge acting under this statutory authority considers orders of another judge as proceedings of the court, there is no inconsistency with the general rule that jurisdiction is in the court and that the judges hold but one and the same court.” (Sandco American, Inc. v. Notrica, supra, 216 Cal.App.3d at p. 1508.)

In the present case, Penal Code section 871.5 requires that if a preliminary hearing is resumed following the granting of a motion to reinstate the

evidence and dismissed the complaint.^[4] In a declaration filed in support of the motion to reinstate the complaint, the prosecutor stated he had telephoned an attorney representing petitioners “during the week of June 19, 1989,” had told her he would be filing the motion to reinstate the complaint, and had obtained her agreement to appear in court on July 13, 1989, to set a briefing schedule. The motion for reinstatement was filed on June 29, 1989, 15 days after the dismissal, and was personally served on petitioners the following morning.

Petitioners contended in superior court that the motion was untimely because it was not served within 15 days of the dismissal, relying upon Code of Civil Procedure section 1005.5, which states a motion “is deemed to have been made . . . upon the due service and filing of the notice of motion,” and upon the decision in People v. Dianda (1986) 178 Cal.App.3d 174 , 178 [ 223 Cal.Rptr. 635 ], which held that a motion to reinstate a complaint is timely where the notice of motion has been served and filed within 15 days of the dismissal. Respondent superior court noted that “as far as the service, although technically it was a day late or morning late, counsel had been informed orally . . . and the court doesn’t feel that there is any prejudice to the defense . . . .” The court ruled the motion was timely because there had been “substantial compliance” with the requirements of section 871.5. We agree.

In Lum v. Mission Inn Foundation, Inc. (1986) 180 Cal.App.3d 967 [ 226 Cal.Rptr. 22 ], the plaintiffs had filed a request for trial de novo, following mandatory arbitration, within the 20-day period then prescribed by statute and court rule but neglected to serve the defendant or file proof of service as specifically required by court rule. Counsel for the defendant, however, received actual notice of the filing of the request for trial de novo within the 20-day period, when he telephoned the court clerk upon receiving a notice of trial setting conference. The Court of Appeal ruled the request for trial de novo was effective despite the lack of service: “Where, as here, the request has been filed within the statutorily prescribed time and the adverse party has obtained within the statutory time actual notice the request was timely filed, the purpose of the proof of service requirement has been entirely fulfilled.” (Id., at p. 972.)

In the present case, counsel for petitioners not only were aware that the People intended to file the motion for reinstatement of the complaint, but

from the premises of adjacent property owners. Macalintal also collected samples in February 1986, on May 22, 1986, and on January 27, 1987.

We begin with the familiar rules for review of an order suppressing evidence. “[T]he burden is clearly upon the defendant, as moving party, to raise the issue of illegally obtained evidence. [Citation.] It has been held, however, that when a defendant raises an issue as to the illegality of an arrest or search, he makes ‘a prima facie case’ when he establishes that an arrest or search was made without a warrant and that ‘the burden then rests upon the prosecution to show proper justification.’ [Citations.] As a parallel to the requirement that a defendant state specific grounds for his suppression motion . . . , the People have been held on appellate review to the particular ‘justification’ or ‘theory’ urged by them in the trial court. [Citations.]” (People v. Manning (1973) 33 Cal.App.3d 586 , 600-601 [ 109 Cal.Rptr. 531 ].)

In the present case, petitioners filed a written motion to suppress which was premised on evidence, received at the preliminary hearing, establishing that the instant searches had been conducted without a warrant. This showing was sufficient to shift the burden to the prosecution to demonstrate proper justification for those searches. The theories urged by the People in the court below, and renewed on appeal, are that (1) a warrant was not required because these were administrative inspections rather than searches, and (2) petitioners lack standing to object to the inspections or searches conducted on June 4, 1986, and January 27, 1987, because this activity was not conducted on the premises of petitioner Los Angeles Chemical Company.

We initially examine the theory that a warrant was unnecessary. “[Administrative searches generally require warrants. [Citations.] . . . Except in certain carefully defined classes of cases, the nonconsensual entry and search of property are governed by the warrant requirement of the Fourth and Fourteenth Amendments.” (Michigan v. Clifford (1984) 464 U.S. 287 , 291-292, fn. omitted [ 78 L.Ed.2d 477 , 483, 104 S.Ct. 641 ].) “If a warrant is necessary, the object of the search determines the type of warrant required. If the primary object is [for an administrative purpose], an administrative warrant will suffice .... [][]If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.” (Id., at p. 294, fn. omitted [78 L.Ed.2d at p.484].)^[5]

As the United States Supreme Court observed in Michigan v. Clifford, supra, 464 U.S. 287 , an exception to the warrant requirement is applicable in “carefully defined classes of cases,” involving administrative searches of pervasively regulated businesses such as the liquor industry (Colonnade Corp. v. United States (1970) 397 U.S. 72 [ 25 L.Ed.2d 60 , 90 S.Ct. 774 ]), firearms dealers (United States v. Biswell (1972) 406 U.S. 311 [ 32 L.Ed.2d 87 , 92 S.Ct. 1593 ]), the mining industry (Donovan v. Dewey (1981) 452 U.S. 594 [ 69 L.Ed.2d 262 , 101 S.Ct. 2534 ]), and automobile junkyards (New York v. Burger (1987) 482 U.S. 691 [ 96 L.Ed.2d 601 , 107 S.Ct. 2636 ]). Such businesses have a lesser expectation of privacy in their commercial premises because of the “history of government oversight.” (New York v. Burger, supra, 482 U.S. 691 , 700 [ 96 L.Ed.2d at 601, 612 ].) A person engaged in such a business does so with the knowledge that the premises “ ‘will be subject to effective inspection.’ ” (Id., at p. 701 [96 L.Ed.2d at p. 613].)

California courts have determined that pervasively regulated businesses include nursing homes (People v. Firstenberg, supra, 92 Cal.App.3d 570 , 579-581), the wholesale fish industry (People v. Harbor Hut Restaurant (1983) 147 Cal.App.3d 1151 , 1155-1156 [ 196 Cal.Rptr. 7 ]), massage parlors (Kim v. Dolch (1985) 173 Cal.App.3d 736 , 743 [ 219 Cal.Rptr. 248 ]), and the liquor industry (People v. Paulson (1990) 216 Cal.App.3d 1480 , 1484 [ 265 Cal.Rptr. 579 ]).^[6] Retail automobile dealerships, by contrast, are not a pervasively regulated business. (Terry York Imports, Inc. v. Department of Motor Vehicles (1987) 197 Cal.App.3d 307 , 319-320 [ 242 Cal.Rptr. 790 ].)

The determination whether a particular business comprises part of a pervasively regulated industry is not made in the abstract. (See Marshall v.

Barlow’s, Inc., supra, 436 U.S. 307 , 321 [56 L.Ed.2d at pp.316-317].) Rather, the particular statute authorizing the warrantless inspection at issue is examined to determine whether it satisfies the following three-part test: “First, there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made .... [^Second, the warrantless inspections must be ‘necessary to further [the] regulatory scheme.’ [Citation.] . . . [UJFinally, ‘the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.’ [Citation.] In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.” (New York v. Burger, supra, 482 U.S. 691 , 702-703 [ 96 L.Ed.2d 601 , 614].)

The People contend, as they did in the superior court, that the inspection in the present case was authorized by Health and Safety Code section 25185, subdivision (a).^[7] This statute appears in an article entitled “Enforcement,” which in turn is part of the chapter entitled “Hazardous Waste Control.” (§ 25100 et seq.) The purpose of the chapter is to require the proper disposal of hazardous wastes. (§25101, subd. (a).) Section 25185, subdivision (a), authorizes department of health services inspectors to “[e]nter and inspect a factory, plant, construction site, waste disposal site, transfer station, establishment or any other place or environment where hazardous wastes are stored, handled, processed, disposed of, or being treated to recover resources.”

The People’s contention that section 25185 invokes the exception to the warrant requirement for pervasively regulated businesses must be rejected in light of the United States Supreme Court’s holding in Marshall v. Barlow’s, Inc., supra, 436 U.S. 307 , prohibiting warrantless inspections for the purpose of enforcing the provisions of the Occupational Safety and Health Act of 1970 (OSHA). The OSHA provisions authorize the inspection of “any employment facility within the Act’s jurisdiction,” to detect safety hazards and violations of OSHA regulations. (Id., at p. 309 [56 L.Ed.2d at p. 309].) As observed by the court, those cases allowing warrantless inspections of pervasively regulated businesses “represent responses to relatively unique circumstances.” (Id., at p. 313 [56 L.Ed.2d at pp. 311-312].) The high court declined to extend to OSHA inspections this exception to the warrant requirement, stating: “The clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is

the exception. [Applying this exception to OSHA inspections] would make it the rule.” (Id., at p. 313 [56 L.Ed.2d at p. 312].)

The opinion in People v. Firstenberg, supra, 92 Cal.App.3d 570 , 578-579, described the holding in Marshall v. Barlow's, Inc. as follows: “Marshall v. Barlow's, Inc., supra, 436 U.S. 307 , unlike Colonnade and Biswell, dealt not with a regulatory scheme for a particular licensed industry, but with a statute which applies to all businesses engaged in interstate commerce . . . . [fí]It is thus clear that there are two lines of cases and two sets of rules governing administrative searches. The first of these deals with general regulatory schemes—whether federal, state, or local—which apply to all residences or all structures or all employers within the particular jurisdiction. . . . The second line of cases involves regulatory legislation governing specific licensed industries.”

Section 25185, subdivision (a), is not limited to a particular industry which traditionally has been the subject of close government regulation. Instead, the statute permits an inspection of any “factory, plant, construction site, waste disposal site, transfer station, establishment or any other place or environment where hazardous wastes are stored, handled, processed, disposed of, or being treated . . . .” Section 25185, therefore, is part of a general regulatory scheme applicable to all persons and entities who generate hazardous waste; the statute does not constitute regulatory legislation governing a specific licensed industry. Under the decisions in Marshall v. Barlow's, Inc. and People v. Firstenberg, the exception to the warrant requirement applicable to pervasively regulated industries does not apply to inspections conducted pursuant to section 25185. Therefore, if consent to conduct such an inspection is refused, the rule that a warrant must be obtained applies, at least until such time as the Legislature decides to enact additional regulatory legislation authorizing warrantless searches directed specifically at industries of the type involved in the present case,^[8] assuming such legislation meets the standards mandated by the United States Supreme Court in the Berger case. Because the department of health services inspectors had no warrant, and the People produced no evidence of consent, the magistrate did not err in granting the motion to suppress evidence seized from the premises of petitioner Los Angeles Chemical Company.

It is unnecessary for us to consider the People’s additional contention that because the inspections on June 4, 1986, and January 27, 1987, were not conducted on the premises of petitioner Los Angeles Chemical Company, petitioners lack standing to object to these inspections. All the criminal