People v. Woodford , 222 Cal. Rptr. 475 ( 1986 )

Opinion

WALLIN, J.

William Woodford pleaded guilty to five felony counts of unlawful sexual intercourse with a female under the age of eighteen. He originally sought to suppress evidence at his preliminary hearing pursuant to Penal Code section 1538.5, but the magistrate refused to entertain the motion. Claiming the magistrate’s refusal to hear the motion was erroneous, Woodford challenged his commitment to superior court pursuant to Penal Code section 995. He now attempts to appeal the denial of his Penal Code section 995 motion. We conclude Woodford’s guilty pleas preclude this appeal.

I

Before Woodford’s preliminary hearing, his attorney filed a formal motion to suppress the testimony of the prosecutrix, arguing the testimony was the fruit of an illegal detention and unlawful search. (Pen. Code, § 1538.5.) The prosecution objected, arguing no fruits of any claimed illegality would be offered into evidence. Defense counsel made the following offer of proof: “It is my belief that if a motion to suppress were heard and testimony were taken . . . [it] would show that an illegal detention occurred and that the victim, Tammy [O.], was first discovered as a result of an illegal detention and that the information that she gave to the police officer upon questioning by him was information which did not establish any wrongdoing. The police officer would testify that what Tammy [O.] told him when he first questioned her was that she and Mr. Woodford were just talking and not doing anything wrong and that thereafter an unlawful search of the Defendant’s motorhome took place during which incriminating evidence was discovered in the nature of contraceptives and whatnot, and that thereafter the police officer again confronted the victim, Tammy [O.], and she at that time told him that sexual activity had occurred, and that thereafter the police discovered further information which led to this prosecution.”

The magistrate refused to hear the motion to suppress despite the offer of proof. After Woodford was held to answer, he moved to set aside the information (Pen. Code, § 995), citing the magistrate’s refusal to hear his suppression motion. The superior court denied the Penal Code section 995 motion, observing the defense offer of proof to the magistrate failed to allege the victim was not a willing witness or that her identity was discovered as a result of the illegal detention of Woodford, as opposed to her own illegal detention.

II

Although Woodford had separately filed a written motion, de novo, to suppress evidence in superior court, he withdrew that motion and pleaded guilty. He purports to appeal the denial of his Penal Code section 995 motion pursuant to subdivision (m) of Penal Code section 1538.5 and People v. Lilienthal (1978) 22 Cal.3d 891 [150 Cal.Rptr. 910, 587 P.2d 706]. Without reference to those authorities, the Attorney General argues Wood-ford should be “estopped” from raising any issue concerning the motion to suppress on appeal, citing his abandonment of that motion in superior court, and his avoidance of pretrial writ relief available under Penal Code section 999a. We are urged to conclude Woodford’s rejection of those remedies “ranks as a failure to object and should be treated as a waiver.” Although the Attorney General’s position is inartfully worded, he is substantively correct because Woodford’s guilty pleas waived his complaint that he was illegally committed by the magistrate. Penal Code section 1538.5, subdivision (m) and People v. Lilienthal, supra, 22 Cal.3d 891, do not provide the relief he claims.

Penal Code section 1538.5, subdivision (m) provides, in pertinent part: “A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.”

Our Supreme Court has interpreted this section to mean that a motion to dismiss pursuant to Penal Code section 995 will preserve Fourth Amendment issues on appeal, even if the defendant fails to bring a de novo motion to suppress evidence in superior court, and even if he pleads guilty. {People v. Lilienthal, supra, 22 Cal.3d 891.) “Although challenges to rulings on section 995 motions premised on other grounds do not survive a guilty plea (People v. Warburton [1970] 7 Cal.App.3d [815] at pp. 821-822, 824-825 [86 Cal.Rptr. 894]), a challenge to a ruling on a section 995 motion brought to review the magistrate’s ruling on a motion to suppress at the preliminary hearing, in our view, falls directly within the ambit of subdivision (m). [f] It bears emphasis that the authorization in subdivision (m) of appellate review of the denial of a section 995 motion contesting the validity of a search or seizure does not authorize appellate review after a guilty plea of rulings on section 995 motions made on other grounds. ... In short, a section 995 motion will be effective to preserve the Fourth Amendment issue on an appeal following a guilty plea only when it appears from the transcript of the preliminary hearing that essential evidence was illegally obtained.” {People v. Lilienthal, supra, 22 Cal.3d at p. 897.)

We read Lilienthal literally. First, the transcript of Woodford’s preliminary hearing does not show that “essential evidence was illegally obtained,” because Woodford was not given an opportunity to prove that point. Second, Woodford’s Penal Code section 995 motion did not contest the “validity of a search and seizure”; it was based on the magistrate’s refusal to hear his suppression motion. Since there was no determination of the validity of the search and seizure Woodford was limited to arguing his commitment to superior court was illegal because he was denied a substantial right—the opportunity to prove the prosecutrix’s testimony was the fruit of an illegal search and seizure. (See Jennings v. Superior Court (1967) 66 Cal.2d 867 [59 Cal.Rptr. 440, 428 P.2d 304].) Thus, his Penal Code section 995 motion was brought “on other grounds,” not Fourth Amendment grounds, as distinguished in Lilienthal.

Lilienthal is entirely consistent with subdivision (m) of Penal Code section 1538.5. That section grants an appellate remedy to defendants seeking review of the “validity of a search and seizure,” even though they plead guilty. It bears emphasis to note again that Woodford does not seek our review of the validity of a search and seizure. In fact, we have no record to review. Woodford does seek review of an illegal commitment. Unlike a Fourth Amendment issue, complaints about an illegal commitment brought via Penal Code section 995 are waived by a guilty plea. (See People v. Kaanehe (1977) 19 Cal.3d 1 [136 Cal.Rptr. 409, 559 P.2d 1028]; People v. Warburton, supra, 7 Cal.App.3d 815; People v. Roper (1983) 144 Cal.App.3d 1033 [193 Cal.Rptr. 15].)

Denying Woodford appellate relief is entirely consistent with settled case law concerning the ability to cure complaints about the legality of a commitment to superior court. For example, People v. Partlow (1978) 84 Cal.App.3d 540 [148 Cal.Rptr. 744], relied on Jennings v. Superior Court, supra, 66 Cal.2d 867 and People v. Neal (1942) 53 Cal.App.2d 379 [127 P.2d 996], and held “that even errors of the most serious nature committed in the course of the preliminary hearing may be remedied in the ensuing proceedings (notably at the trial) and do not necessarily lead to the reversal of the conviction.” (People v. Partlow, supra, 84 Cal.App.3d at p. 553.) Partlow found the magistrate’s erroneous failure to order the production of an informant was fully cured by the informant’s subsequent trial testimony. That holding is based on the rationale that the preliminary hearing defect “is not jurisdictional in the fundamental sense because it is subject to waiver.” (Id., at p. 555; see also People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 528-529 [165 Cal.Rptr. 851, 612 P.2d 941].)

Waiver is present here. Even though we agree the preliminary hearing magistrate erred in denying Woodford an opportunity to present evidence in support of his motion to suppress, the illegality of his resultant commitment to superior court is an issue waived by his guilty pleas.

The dissent suggests Woodford is entitled to withdraw his pleas. However to permit withdrawal in these circumstances this court must find the pleas were improperly induced by an illusory promise. (See, e.g., People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872].) Nothing is this record supports such a finding. The dissent’s statement Woodford “pleaded guilty in good faith reliance on the promise of a statute” is mere speculation.

The appeal is dismissed.

Trotter, P. J., concurred.