People v. Mattson

BROUSSARD, J.

I dissent. When this case was before this court on appeal after defendant’s first trial, we reversed defendant’s convictions on the ground that a confession obtained in violation of the privilege against self-incrimination had been admitted in evidence. (People v. Mattson (1984) 37 Cal.3d 85 [ 207 Cal.Rptr. 278 , 688 P.2d 887 ].) I agree with Justice Mosk that at defendant’s second trial, the People had no authority to seek to relitigate that determination by the presentation of new evidence and a new theory supporting the admissibility of the confession.

As Justice Kennard demonstrates in her concurring opinion, the issue of the admissibility of the statements arose at the first trial in the context of a motion under Penal Code section 1538.5. 1 It is true that a motion pursuant to section 1538.5 will not lie to suppress a confession on the sole ground that the confession was obtained in violation of the privilege against self-incrimination. (Peo ple v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 734 [ 125 Cal.Rptr. 798 , 542 P.2d 1390 ].) Nonetheless, when it is argued, as it was in this case, that physical evidence was illegally seized as the fruit of an improperly obtained confession, a decision whether the confession was illegally obtained must be made in the context of the section 1538.5 hearing. As we have explained, in such a situation “a ruling on the [confession] issue necessarily became part of the section 1538.5 hearing. . . . Our review of the admissibility of the physical evidence, which we undertake in accord with the provisions of section 1538.5, necessarily requires that we make a determination as to whether or not the trial court was correct in holding that a Miranda violation has occurred. [Miranda v. Arizona (1966) 384 U.S. 436 ( 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ).] Our ruling on that issue then becomes the law of the case and must be adhered to by the lower *887 courts in future proceedings in this action. [Citation]” ( 15 Cal.3d at p. 735 , italics added.)

Justice Kennard would hold that although the ruling on the admissibility of the confession was properly part of the section 1538.5 hearing in this case, the factual basis for the determination can be relitigated after the reversal of the conviction on appeal. Here I part company with Justice Kennard. In my view, the parties are required to litigate all the factual and legal predicates for a ruling on a motion pursuant to section 1538.5 at the hearing; they are not allowed to reserve evidence or legal argument for a rainy day. The admissibility of the confession was a legal predicate for the ruling on the suppression of physical evidence, and the People were required to fully litigate it at that hearing.

We have determined that the parties are obliged to present all their evidence and theories regarding the suppression of evidence at the hearing pursuant to section 1538.5. Having determined that the evidence should be suppressed, we have refused to remand to permit relitigation of the suppression motion on a new theory necessitating a new evidentiary hearing. Thus in Lorenzana v. Superior Court (1973) 9 Cal.3d 626 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ], defendant sought a pretrial writ to overturn the denial of his section 1538.5 motion. We agreed with him and reversed the trial court. The People argued that we should remand to the trial court to allow them to argue a new theory, that is, inevitable discovery. We refused, referring to the purpose of section 1538.5 to “avoid the continued relitigation of the question of the admissibility of evidence.” ( 9 Cal.3d at p. 640 .) We continued: “All parties faced the obligation of presenting all their testimony and arguments relative to the question of the admissibility of the evidence at that time. If the People had other theories to support their contention that the evidence was not the product of illegal police conduct, the proper place to argue those theories was on the trial level at the suppression hearing. ... To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the 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. [Citation. Fn. omitted.]” ( 9 Cal.3d at p. 640 , italics added.)

There can be no basis for concluding that the Lorenzana rule applies only to pretrial review of rulings on suppression motions, but not to a judgment which is reversed on appeal. If the policy of section 1538.5 is to require full and final litigation of the factual basis for the suppression claim at the first hearing, that policy applies whether the ruling on the motion is challenged before or after trial. Indeed, section 1538.5 is explicit in affirming that the *888 People are bound by the judgment of the reviewing court when the People seek review of a ruling by appeal or writ. (§ 1538.5, subd. (j).)

Of course, a trial court may determine that one argument for the suppression of evidence is determinative, and may choose to hear evidence only on that point. In such a case the trial court limits the issues, and if the court is reversed on appeal the remaining issues may be litigated—for the first time. (People v. Brooks (1980) 26 Cal.3d 471, 482-483 [ 162 Cal.Rptr. 177 , 605 P.2d 1306 ].) But this rule gives the People no comfort in this case, because it allows postappeal litigation only of issues which were actually presented at the first hearing.

Here, the People failed to make the argument or present the evidence at the first hearing that persuaded the court at the second hearing to admit the confessions. To allow such a procedure is grossly wasteful of judicial resources, requiring, as it did, a second full capital trial. It also calls into question the reliability of the proceedings by giving too much scope for what Justice Mosk politely refers to as “embellished” testimony. I would abide by our decision the first time this case was before us, and reverse the convictions.

Appellant’s petition for a rehearing was denied July 11, 1990. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.

All further statutory references are to the Penal Code.