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People v. Gallagher

January 30, 2009

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
KIMBERLY ANN GALLAGHER, DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of the County of San Mateo, Gerald L. Buchwald, Judge. Dismissed. (Super. Ct. No. NM 373513A).

The opinion of the court was delivered by: Gatzert, P. J.

TO BE PUBLISHED

The question before this court is whether the People are entitled to appeal an order granting a motion to suppress evidence where, prior to the filing of the appeal, the misdemeanor case was dismissed pursuant to Penal Code*fn1 section 1385 at the People‟s request. We conclude that they are not.

PROCEDURAL BACKGROUND

In this misdemeanor case, a motion to suppress evidence under section 1538.5 was heard on May 27, 2008*fn2 , by the trial court, and continued for further briefing until June 13.

On June 13, the motion to suppress was granted. Counsel for Defendant then asked the trial court to dismiss the case. Instead of immediately ruling, the trial court continued the hearing on the request for dismissal. On June 16, the matter was heard by a different judge. Counsel for the People stated, "Your Honor, the People are, given the Court‟s ruling last week, the People are unable to proceed. And we‟re going to ask the Court to dismiss the action under 1385."

The trial court granted the dismissal, stating: "Matter is dismissed on the People‟s motion." Counsel for the People then reiterated, "The People don‟t have enough evidence to proceed, so the request was if the Court would dismiss the matter under Penal Code Section 1385." The court ruled, "The matter dismissed under Penal Code Section 1385."

The People filed a notice of appeal on June 27 identifying the June 13 order granting the motion to suppress evidence as the subject of their appeal. On August 12, Defendant filed a motion to dismiss the appeal for lack of appellate jurisdiction, as the People had dismissed the underlying case.

ISSUE PRESENTED

On appeal, the People assert that, while section 1538.5 authorizes them to appeal an adverse ruling in a motion to suppress evidence, it does not specify the procedural steps. The People interpret the law as precluding the People from appealing unless the case is first dismissed. Furthermore, the People cite section 1466, subdivision (1)(B), as authorizing appeal of an order dismissing a case. The People rely upon the case of People v. Bonds (Bonds) (1999) 70 Cal.App.4th 732, as standing for the proposition that an appeal is not precluded where the trial court dismisses a case after the prosecution has announced its inability to go forward due to lack of evidence.

Defendant asserts that the People are barred from appealing a case that was dismissed under section 1385 at the People‟s own request, citing to section 1238, subdivision (a)(7), and cases interpreting it. Defendant points out that the People did not exercise the opportunity to request a stay in proceedings to allow them to proceed with an appeal.

I. The Ruling on the Section 1538.5 Motion was Appealable Without the Dismissal

The People claim that they are precluded from appealing an order granting a motion to suppress evidence unless they first obtain an order dismissing the case. We disagree.

Section 1538.5 provides that, in misdemeanor cases, an adverse ruling in a motion to suppress evidence may be ...


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