Distinguished
Distinguished by People v. Caldwell, 230 Cal. App. Supp. 3d 1 (1991)
While Sahagun thus is inapplicable to the case at bar in most respects, that portion of the opinion which prohibits reliance upon unsworn declarations of at in camera hearing does apply.
The opinion
*28 MORRIS, J.
—I concur in the judgment.
I agree that the 1977 order suppressing the evidence and the resulting dismissal prior to the preliminary hearing did not preclude the refiling of charges, and that the ruling at the prior suppression hearing is not binding in any subsequent proceeding.
I also agree that the procedures followed in the in camera hearing denied the People one of the most fundamental rights essential to a fair trial: the right to be present during all important stages of the proceedings. The trial court specifically stated that “the controlling factor in the case is the delay.” In my opinion, the denial of the right of the People to participate in the trial of the issue of prejudicial prosecutorial delay vitiated the entire proceeding, and requires a reversal of the order setting aside the indictment.
Therefore, I do not join in the majority’s speculations about the legality of the search and the possible justification for proceeding without a search warrant.
The motion before the trial court pertaining to the search and seizure issue was a motion to dismiss pursuant to Penal Code section 995, on the ground that the evidence submitted to the grand jury was incompetent evidence on the theoiy that the 1977 ruling suppressing the evidence was binding in all subsequent proceedings. We have held that it was not. No motion to suppress evidence pursuant to Penal Code section 1538.5 was made in this case, and the transcript of the 1977 suppression hearing was not properly before the trial court and is not before this court.
As the basis for discussing the lawfulness of the search, the majority assumes that the trial court made an independent finding that there was an unlawful search based solely on the grand jury transcript. This is an unwarranted assumption. Although it is unclear whether the trial judge was ruling on the lawfulness of the search or on the competency of the evidence before the grand jury, it is clear that he considered the evidence produced at the 1977 hearing, as demonstrated by his concluding statement, “[I]f a search warrant had been obtained, there is no reason why there wasn’t enough evidence to sustain binding this matter over to the Superior Court at the time Judge Carroll dismissed it.” Judge Carroll presided at the 1977 hearing. Since the 1977 order suppressing evidence is not binding in this proceeding and the transcript of that hearing was not *29 properly before the court, findings predicated in part upon such evidence cannot be used as an independent basis to support the dismissal. Under these circumstances, speculations about the legality of the search can serve no good purpose.
If the case survives any subsequent motion to dismiss for prejudicial prosecutorial delay, the evidence on the lawfulness of the search may be fully presented in a motion under Penal Code section 1538.5.
A petition for a rehearing was denied February 20, 1979, and respondents’ petitions for a hearing by the Supreme Court were denied March 29, 1979. Mosk, J., and Newman, J., were of the opinion that the petitions should be granted.