Metropolitan News-Enterprise


Thursday, March 12, 2009


Page 3


C.A.: Prosecutors Cannot Appeal Suppression Ruling in Dismissed Case


By a MetNews Staff Writer


Prosecutors may not appeal an order granting a motion to suppress evidence if the underlying case has already been dismissed, the San Mateo Superior Court Appellate Division ruled yesterday.

The panel dismissed the prosecution’s appeal of San Mateo Superior Court Judge Gerald L. Buchwald’s order granting Kimberly Gallagher’s motion to suppress evidence in her misdemeanor criminal trial.

After Buchwald granted the motion, Gallagher asked him to dismiss the case, but he continued the hearing on her request.

Gallagher’s motion was heard by a different judge, and at that hearing the prosecutor announced the People were unable to proceed due to a lack of evidence and requested the case be dismissed. The trial court dismissed the case on the prosecutor’s motion.

The prosecution subsequently filed a notice of appeal identifying Buchwald’s order granting the motion to suppress evidence as the subject of the appeal. The prosecution contended that Penal Code Sec. 1538.5 precluded appellate review unless the underlying case was first dismissed.

Citing Sec. 1238(a)(7), Gallagher argued that the prosecution was barred from appealing a case that had been dismissed at its own request and that appellate jurisdiction was therefore lacking.

Sec. 1538.5 provides that both the people and defendant “shall have the right to appeal” an adverse ruling on a motion to suppress evidence to the appellate division, “in accordance with the California Rules of Court provisions governing appeals to the appellate division in criminal cases.”

Writing for the appellate division, Presiding Judge Norman J. Gatzert explained that nothing in Sec. 1538.5 established dismissal as a prerequisite to an appeal in misdemeanor cases.

The correct procedure, he wrote,  would have been to obtain a stay of the proceedings instead.

Although Sec. 1466(a)(b) provides that an appeal may be taken in misdemeanor cases “[f]rom an order or judgment dismissing or otherwise terminating all or any portion of the action, including such an order or judgment, entered after a verdict or finding of guilty or a verdict or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy,” Gatzert reasoned the grounds provided for appeal were not an exhaustive list.

And even if the prosecution had appealed the order dismissing the case, Gatzert added, the dismissal would have been nonappealable invited error because the dismissal had been entered at the prosecution’s request.

As for Gallagher’s argument, Gatzert noted that Sec. 1238(a)(7) only applies to felony cases and authorizes an appeal if the case was dismissed on the court’s own motion based on an order granting a motion to suppress evidence.

Accordingly, even if Gallagher had been charged with a felony, the dismissal still would not have been appealable, Gatzert concluded.

Judges Marie S.  Weiner and Lisa A. Novak joined Gatzert in his opinion.

The case is People v. Gallagher, No. 5041.


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