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People v. Trombetta3/28/1983
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
Nos. AO16358, AO16374, AO17265, AO17266
1983.CA.40938 ; 190 Cal. Rptr. 319; 142 Cal. App. 3d 138
March 28, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALBERT WALTER TROMBETTA, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT, V. MICHAEL GENE COX ET AL., DEFENDANTS AND APPELLANTS. IN RE GREGORY MOLLER WARD ON HABEAS CORPUS. IN RE GALE BERNELL BERRY ON HABEAS CORPUS
Municipal Court for the Sonoma County Judicial District of Sonoma County, Nos. 78402TCR, 77262TCR, 79029TCR, 79846TCR, 78206TCR, 78305TCR and 79839TCR, Lawrence G. Antolini, Judge.
John F. De Meo and Thomas R. Kenney for Defendants and Appellants.
Ed Kuwatch as Amicus Curiae on behalf of Defendant and Appellant.
J. Frederick Haley and John A. Pettis for Petitioners.
James R. Jenner, Public Defender, and Scott A. Sugarman, Assistant Public Defender, as Amici Curiae on behalf of Defendants and Appellants and Petitioners.
George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Charles R. B. Kirk and Gloria F. DeHart, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Poche, J., with Rattigan, Acting P. J., concurring. Separate concurring opinion by Christian, J.
Poche
These cases arise, in diverse procedural settings, from misdemeanor prosecutions for driving under the influence of intoxicating liquor (formerly Veh. Code §§ 23101, subd. (a), or 23102, subd. (a); now §§ 23153, subd. (a), or 23152, subd. (a), respectively). The issue raised is whether intoxilyzer breath results are rendered inadmissible in a trial for driving under the influence of intoxicating liquor by virtue of the failure of law enforcement officials to preserve a retestable breath sample.
In each case the municipal court denied the defendant's common law motion to suppress the evidence obtained from an intoxilyzer breath test. Each defendant then appealed to the superior court which affirmed the lower court order; the cases were then certified for transfer to this court. In the Trombetta and Cox groups of cases this court accepted transfer. It appears that Trombetta and its companion case have not proceeded to trial. The record does not indicate whether the cases in the Cox group have proceeded to trial; no judgment was entered in these cases.
An appeal may not be taken from a pretrial order of the municipal court. (Code Civ. Proc., § 904.2.) The correct procedure in Trombetta and Cox would therefore have been for the defendants to wait until a judgment was entered in the municipal court and then appeal that judgment. Because no appealable order was challenged in Trombetta or Cox those appeals should have been dismissed by the appellate department of the superior court. (People v. Superior Court (Scott) (1980) 112 Cal. App. 3d 602, 606 [169 Cal. Rptr. 412].)
In the Ward and Berry cases judgments of conviction were followed by superior court appeals; transfers to the Court of Appeal were denied whereupon those defendants petitioned the Supreme Court for writs of habeas corpus. The Supreme Court issued orders in Ward and Berry to show cause before this court why
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