Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07-5289
BUTZ, J.As a result of evidence seized from a traffic stop, defendant Rolando Arismendez and codefendant Martin Sanchez were each charged with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Each defendant filed a motion to suppress the evidence. (Pen. Code, § 1538.5.) Defendant’s motion was denied by Judge Glenn A. Ritchey, Jr., but codefendant Martin Sanchez’s motion, based on the same facts, was granted by Judge W. Arvid Johnson. Defendant then appeared before Judge Johnson for a trial setting conference, at which his attorney moved to dismiss the charges in the interest of justice (§ 1385). Judge Johnson granted the motion, stating it was the only way to treat defendant fairly, since the court felt the denial of his section 1538.5 motion was patently erroneous.
Undesignated statutory references are to the Penal Code.
The People appeal, contending the dismissal was an abuse of discretion because Judge Johnson was without authority to overturn an earlier suppression ruling made by a different judge. We agree and shall reverse.
Our statement of facts is derived from the preliminary examination held on December 20, 2007, and defendant’s suppression hearing held on March 13, 2008.
On the evening of September 2, 2007, Sergeant Douglas Bates of the Davis Police Department was on a routine patrol in a marked unit, traveling westbound on Covell Boulevard approaching Lake Boulevard. As his car came to a stop at a four-way intersection preparing to make a left turn, Bates observed a grey Volkswagen Jetta approach eastbound on Covell. The vehicle was driven by defendant and was occupied by codefendant Sanchez, and two other individuals. Bates observed the vehicle slow to 10 to 15 miles per hour and then make a right turn on Lake.
Sergeant Bates drove across the intersection and confirmed that there was a stop sign, a limit line, and a yield sign where defendant had made a right turn. Bates then followed defendant and pulled him over for failing to observe a stop sign (Veh. Code, § 22450, subd. (a)) and for failing to yield (Veh. Code, § 21803, subd. (a)). When defendant admitted that his license was suspended and he was on parole, Bates asked him and Sanchez to step out of the car. A search of both individuals produced methamphetamine.
PROCEDURAL BACKGROUND
On January 3, 2008, the district attorney filed an information charging defendant and Sanchez with transportation of methamphetamine and possession of methamphetamine. The information separately charged defendant with driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and alleged that defendant had suffered a prior strike conviction and served a prior prison term.
On January 18, 2008, defendant filed a motion to suppress evidence seized from him based on the facts recited above, on the ground that Sergeant Bates did not have reasonable suspicion to stop defendant’s car. Judge Ritchey, a visiting judge, heard and denied defendant’s motion on March 13, 2008. Sometime after defendant’s motion was denied, Judge Johnson heard and granted codefendant Sanchez’s motion to suppress, based on the same evidence.
On June 5, 2008, Judge Johnson presided over defendant’s trial setting conference. When the judge asked counsel when he would like to schedule a trial date, counsel asked to approach the bench. Following an unreported sidebar, defendant orally moved to dismiss the case in the interest of justice under section 1385, stating: “The motion to suppress in this case was conducted on March 13th of 2008 in front of a visiting judge, when my motion was denied. [¶] I believe subsequent to that date the this Court has heard the exact same evidence and a motion to suppress regarding [codefendant Sanchez] and granted that motion on the exact same facts and situation. [¶] I would ask the Court to consider its ruling, to consider the facts of the case, and to dismiss under Penal Code Section 1385. [¶] I think that under the due process clause of the United States Constitution that that would be a fair and equitable resolution of this case.”
The People opposed defendant’s motion, arguing that “because one Court disagrees with another is not [a] sufficient ground to dismiss a case pursuant to [section] 1385.” Judge Johnson nevertheless granted defendant’s motion to dismiss pursuant to section 1385. The judge recalled that he had heard codefendant Sanchez’s motion to suppress and remarked that it was “an easy call” for him to grant the motion, explaining that defendant had no obligation to yield or stop at the stop sign under the circumstances described by Sergeant Bates.
Judge Johnson then concluded: “I don’t know how else to treat [defendant] fairly than to dismiss it. Otherwise, his only option is to plead, take it up on appeal, waste additional appellate time. [¶] I just don’t see any other way to resolve this. That would be in the interest of justice.”
The court minute order recites that defendant’s case was dismissed “per [section] 1385 (Int[erest] of Justice).”
DISCUSSION
I. Procedural Defect
Before we proceed to the merits of the People’s argument, we note a procedural defect in the court’s order. Section 1385, subdivision (a) provides, in relevant part, that “the [court] may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.” (Italics added.)
The requirement that the reasons for the dismissal be set forth in the order is not merely directory, but mandatory, and neither trial nor appellate courts have authority to disregard it. (People v. McAlonan (1972) 22 Cal.App.3d 982, 985.) The failure to state the “reasons of the dismissal... in the order is fatal and is alone sufficient to invalidate the dismissal.” (People v. Orin (1975) 13 Cal.3d 937, 945 (Orin).)
The trial court’s order failed to satisfy the requirements of section 1385. The only notation made on the order is one that states it was dismissed “per [section] 1385 (Int[erest] of Justice).” Such a cursory order is insufficient to meet the requirements of the statute, because it fails to indicate why the dismissal is in the furtherance of justice. (See Orin, supra, 13 Cal.3d at pp. 944-945.) Although we would ordinarily remand to the trial court for a statement of reasons, such an exercise would be unproductive, because Judge Johnson’s oral statement from the bench adequately states the reasons why he felt compelled to dismiss the case. In the interest of judicial economy, we will deem Judge Johnson’s failure to incorporate his oral explanation of reasons into the minute order to be the result of clerical error, and address the merits of the People’s appeal.
II. Abuse of Discretion
Section 1538.5, subdivision (i) provides, in pertinent part: “After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.” (Italics added.) Subdivision (m) provides, in relevant part: “The proceedings provided for in this section... shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the... suppression of evidence is a defendant in a criminal case.” (Italics added.)
The People contend the trial court’s order of dismissal violated these statutory commands because, while the trial court did not expressly reconsider defendant’s motion to suppress, “it is obvious from [Judge Johnson’s] comments that his order to dismiss pursuant to section 1385 was based on evaluation of the merits of [defendant’s] motion to suppress.” The People contend that since the dismissal essentially constituted a reconsideration and second ruling on the merits of Judge Ritchey’s ruling on the earlier motion to suppress, Judge Johnson exceeded his jurisdiction and thus abused the court’s discretion. We agree.
We note that defendant has not filed a respondent’s brief. This does not entitle the People to an automatic victory, however. “Under the circumstances, we do not assume that ‘the ground urged by appellant for reversing the judgment is meritorious’ (People v. Hacker Emporium, Inc. (1971) 15 Cal.App.3d 474, 476-477), but rather we ‘examine the record on the basis of appellant’s brief and... reverse only if prejudicial error is found. [Citation.]’ (Estate of Maron (1986) 183 Cal.App.3d 707, 711, fn. 1.)” (Korea Exchange Bank v. Yang (1988) 200 Cal.App.3d 1471, 1473.)
“Section 1538.5 provides a comprehensive and exclusive procedure for the final determination of search and seizure issues prior to trial.” (People v. Brooks (1980) 26 Cal.3d 471, 475 (Brooks).) As a general rule, a defendant is allowed only one pretrial suppression motion and any reconsideration of that motion prior to trial is in excess of the court’s jurisdiction. (Madril v. Superior Court (1975) 15 Cal.3d 73, 75, 77-78; People v. Sotelo (1996) 47 Cal.App.4th 264, 273-274; People v. Thomas (1983) 141 Cal.App.3d 496, 501; People v. Nelson (1981) 126 Cal.App.3d 978, 981; People v. Superior Court (Green) (1970) 10 Cal.App.3d 477, 480-481 (Green).)
Under section 1538.5, if a defendant’s motion to suppress is denied, the defendant’s exclusive remedy is, within 30 days, to seek a writ of mandate or prohibition from the appellate court; if the defendant is unsuccessful and the evidence sought to be suppressed is used against him resulting in a conviction, he may appeal from the judgment, upon which further review of the validity of the search or seizure may be had. However, a defendant whose suppression motion proves unsuccessful is not entitled to a second hearing on the motion prior to trial. (Green, supra, 10 Cal.App.3d at pp. 480-481.)
In Green, two codefendants represented by the same attorney moved to suppress evidence under section 1538.5. After their motion to suppress was denied, the defendants retained separate counsel and moved to renew their motion to suppress. Over the People’s jurisdictional objection, the court allowed renewal of the motion and a second suppression hearing was held before a different judge, based on substantially the same testimony as was given at the first hearing. The judge presiding over the second hearing granted the motion to suppress. (Green, supra, 10 Cal.App.3d at pp. 478-479.)
In reversing the second ruling, the Green court noted that “defendants had a full hearing at which extensive testimony was taken... and that the second hearing was directed to the same motion on the same grounds, raising the same issues and submitted on the same evidence.” (Green, supra,10 Cal.App.3d at p. 479.) The court reasoned that to permit a rehearing would result in repeated and endless hearings on which the same search and seizure issue would be raised before successive judges until one granted the motion. Not only would such a practice fail to comport with justice, encourage trial delays, and be contrary to the purpose of section 1538.5, the court noted that it could also amount to forum shopping. (Id. at pp. 480-481.)
Here, although Judge Johnson did not expressly state that he was reconsidering the merits of defendant’s motion to suppress, his statements reveal that that was exactly what he was doing. Judge Johnson stated that he heard codefendant Sanchez’s motion based on the same evidence; that it was an “easy call” for him to make; and opined that if he allowed Judge Ritchey’s ruling to stand, the appellate court would surely reverse it on appeal, thereby wasting court time. Judge Johnson dismissed the case, ostensibly to provide equal treatment, or to “treat [defendant] fairly.” Although the order purports to dismiss the charges “in the interest of justice,” the court’s explanation shows that it was intended to, and indeed did, have the effect of granting defendant’s motion to suppress, which had been previously denied by a different judge.
Judge Johnson’s order amounted to a de facto reconsideration and different ruling on the merits of a suppression motion that had been denied. Accordingly, the dismissal must “properly [be] characterized as relitigation of matters that the parties had opportunity to fully air in the first hearings.” (Brooks, supra, 26 Cal.3d at p. 478.) Because “there is no provision in the law for a second hearing on the motion prior to trial which would allow for an exercise of the trial court’s discretion” (Green, supra, 10 Cal.App.3d at p. 480), the order was unauthorized and thus an abuse of discretion.
We are cognizant of Judge Johnson’s stated goal of saving “additional appellate time,” owing to his belief that granting the section 1538.5 motion was an “easy call.” However, it was not his call to make. As we have seen, defendant’s sole remedy to test the validity of Judge Ritchey’s denial of his suppression motion was to petition for writ of mandate or prohibition in this court, or obtain review of the ruling on appeal from a judgment of conviction. (§ 1538.5, subds. (i), (m); Green, supra, 10 Cal.App.3d at p. 481.)
DISPOSITION
The order of dismissal is reversed. The cause is remanded to the trial court for further proceedings consistent with this opinion.
We concur: BLEASE, Acting P. J., SIMS, J.