People v. Warburton

The legal sufficiency of the evidence before the grand jury is another kind of issue. It is the rule that a plea of guilty is an admission of every element of the offense, so that no other proof is necessary. (See People v. Ward (1967) 66 Cal.2d 571 , 574-575 [ 58 Cal.Rptr. 313 , 426 P.2d 881 ]; People v. Jones (1959) 52 Cal.2d 636 , 651 [ 343 P.2d 577 ].) A judgment entered upon such a plea is not reviewable on the merits. Even though the judgment is appealable, “irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed.” (People v. Laudermilk (1967) 67 Cal.2d 272 , 281-282 [ 61 Cal.Rptr. 644 , 431 P.2d 228 ]; Stephens v. Toomey (1959) 51 Cal.2d 864 , 870 [ 338 P.2d 182 ].)

Considering the nature of the plea of nolo contendere, as defined in Penal Code section 1016, supra, a conviction based on that plea is no more subject to review than one based upon a guilty plea.

The claimed insufficiency of the evidence before the grand jury is not an issue which goes to the jurisdiction or the legality of the trial court proceedings in any fundamental sense. Penal Code section 995 gives the defendant the opportunity to challenge the regularity of the grand jury proceedings or the preliminary examination, as well as the existence of probable cause, by motion prior to entering his plea. Penal Code section 996 provides that if such a motion is not made, “the defendant is precluded from afterwards taking the objections mentioned” in section 995, Numerous decisions of the courts have consistently held that failure to make a timely motion under section 995 constitutes a waiver of any further review of such issues (see, e.g., People v. Harris (1967) 67 Cal.2d 866 , 870 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ] (lack of counsel at preliminary examination); People v. Dupree (1957) 156 Cal.App.2d 60 , 66 [ 319 P.2d 39 ] (lack of probable cause to indict)). Insufficiency of the evidence before the grand jury or at the preliminary examination is “jurisdictional” in the special procedural sense that the ruling of the trial court may be reviewed by writ of prohibition under Penal Code section 999a. (See Guerin v. Superior Court (1969) 269 Cal.App.2d 80 , 83 [ 75 Cal.Rptr. 923 ].) But the defect is not jurisdictional in the fundamental sense, because, as the cases cited above demonstrate, it is subject to waiver.

In re Wells (1967) 67 Cal.2d 873 [ 64 Cal.Rptr. 317 , 434 P.2d 613 ] was a collateral attack upon a conviction in which the petitioner claimed he was not apprised of his right to counsel at the preliminary examination. The Supreme Court said (at p. 875): “But assuming that petitioner

The rationale of the Harris and Wells cases appears equally applicable to the claim of insufficient evidence before the grand jury.

If the lack of probable cause is waived by failure to make a motion under section 995, a fortiori it is waived by a plea of guilty or nolo contendere. If an indictment is dismissed by the trial court for lack of probable cause, the People may file again if additional evidence is available. It is a reasonable assumption that a defendant will not plead guilty or nolo contendere unless he is satisfied that the People do have sufficient evidence at least to hold him for trial. No reason has been suggested why a defendant should be permitted to enter a plea of guilty or nolo contendere, and thereafter seek appellate review of whether the evidence before the grand jury indicated probable cause to hold him to answer.

We conclude that the reviewability of the ruling on the motion to suppress evidence under section 1538.5 is an exception to the long-established rule limiting review of convictions based on guilty pleas. The availability of the review authorized by subdivision (m) of section 1538.5 does not open up other issues which, under settled law, are put to rest by the defendant’s plea.

We are aware that in People v. Clark (1969) 2 Cal.App.3d 510 [ 82 Cal.Rptr. 682 ], which was an appeal from a judgment based on a guilty plea following a denial of a motion under section 1538.5, the court did review an issue not related to the validity of a search or seizure. The court did not discuss, and apparently did not consider, whether the defendant was entitled to raise the other issue. The case therefore is not authority supporting such a review. Cases are not authority for questions not presented or considered. (General Motors Accept. Corp. v. Kyle (1960) 54 Cal.2d 101 , 114 [ 4 Cal.Rptr. 496 , 351 P.2d 768 ].)

Defendant is thus not entitled to any review on his contention that the evidence before the grand jury was insufficient to establish probable cause for the indictment.

The Claim of Illegal Search

The evidence which defendant desires to suppress consists entirely

Defendant’s contention is that these subpenas duces tecum were issued and served contrary to the provisions of statutes which defendant claims were applicable. Defendant’s criticisms of the subpenas are (1) they were not supported by an application containing an affidavit showing good 'cause; (2) the things to be produced were not described with sufficient particularity; (3) no supporting affidavit was served with the subpena; (4) the district attorney issued a grand jury subpena for the purpose of obtaining records for inspection by the Commissioner of Corporations.

It does not appear that any of the persons to whom the subpenas were addressed made any objection to producing the records and papers demanded. The fact is that the persons who were subpenaed did comply without raising the legal issues which defendant wished to litigate. Under these circumstances it is not necessary for us to consider whether there is any legal merit in any of the alleged defects in the subpena procedure because such alleged defects do not constitute a ground for excluding or suppressing the documents on defendant’s motion.

Defendant invokes the doctrine that illegally obtained evidence must be excluded in a criminal prosecution (citing People v. Cahan (1955) 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ]); but he has not cited any authority for the use of that rule to exclude evidence produced by non-party witnesses who have been called under defective subpenas which the witnesses themselves honored without objection.

In the absence of authority directly in point, defendant has constructed an argument from a sequence of established propositions. He points out that enforcement of an order to produce a man’s private papers to establish a criminal charge against him is a search within the scope of the Fourth Amendment (Boyd v. United States (1886) 116 U.S. 616 [ 29 L.Ed. 746 , 6 S.Ct. 524 ]); a subpena may constitute an unreasonable search if it is “far too sweeping in its terms” (see Hale v. Henkel (1906) 201 U.S. 43 , 76 [ 50 L.Ed. 652 , 666, 26 S.Ct. 370 ]); and a defendant in a criminal case has standing to object to the use of evidence obtained by violating the constitutional rights of others (People v. Martin (1955) 45 Cal.2d 755 , 761 [ 290 P.2d 855 ]).

In the case at bench defendant is arguing that the service of the subpenas was an illegal search of the person subpenaed, and that, under the Martin rule, defendant is entitled to have the evidence excluded.

The flaw in defendant’s thesis here is that it uncritically equates serving a subpena duces tecum with entering an office and forcibly seizing papers found there. When police unjustifiably enter an office and seize papers, privacy is irrevocably destroyed. But the issuance and service of a subpena do not, by themselves, invade the private papers of anyone. If the person having custody of the papers believes the subpena is defective, and he is unwilling to waive the defect by his voluntary compliance, he may make a motion to quash the subpena (see Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206 , 209 [ 100 P.2d 302 , 130 A.L.R. 323 ]) or he may refuse to comply and present his excuse when enforcement is attempted against him (C. S. Smith Met. Market Co. v. Superior Court (1940) 16 Cal.2d 226 [ 106 P.2d 414 ]).

Where the custodian chooses to disregard defects in the process, and comes forward with the papers and records, his Fourth Amendment rights have not been invaded.

Therefore, the rationale of the Martin opinion—that we exclude the evidence to discourage unlawful police conduct—does not apply here.

Finally, we emphasize that this appeal does not involve the admissibility of evidence generally. The only ground of exclusion that defendant was entitled to raise under Penal Code section 1538.5, and the only ground he is entitled to have reviewed on his appeal following a nolo contendere plea, is that the evidence was obtained as a result of an unreasonable search and seizure. Had defendant wished to contest on other grounds the admissibility of the evidence used against him, he could have pleaded not guilty and, in a trial, made his objections as the evidence was offered. Had he been convicted after a trial, he could have tested on

Our conclusion is that when the custodian of records and papers produces them in response to a subpena duces tecum, without questioning the regularity of the supena procedure, the defendant is not entitled to a suppression of that evidence under Penal Code section 1538.5 upon the grounds asserted in this case.

The purported appeals from the orders are dismissed.

The judgment is affirmed.

Jefferson, J., and Dunn, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 16, 1970. Peters, J., was of the opinion that the petition should be granted.