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Ellis v. Municipal Court3/28/1995
MERRILL, J.:
This petition for writ of mandate challenges decisions by the San Mateo County Municipal and Superior Courts refusing to stay the municipal court trial of Scott Anthony Ellis pending his appeal to the appellate department of the superior court from denial of his Penal Code section 1538.5 suppression motion. Appeal is the only pretrial remedy for an erroneous ruling on his suppression motion. The issue raised here is whether a stay is automatic, as claimed by Mr. Ellis, or within the courts' discretion. We conclude it is a matter of discretion, but that the municipal court failed to exercise its discretion. We direct issuance of a writ of mandate to the municipal court.
On July 20, 1994, Mr. Ellis was charged by complaint in San Mateo County Municipal Court with two misdemeanors: driving under the influence of alcohol and driving without a valid driver's license (Veh. Code, §§ 23152 & 12500). He moved to suppress evidence under section 1538.5. The motion was heard and denied August 31, 1994. Mr. Ellis promptly presented a notice of appeal from the suppression ruling and asked the municipal court to stay the trial pending resolution of the appeal to the Appellate Department of the Superior Court of San Mateo County. The People did not comment on his request, which the court denied, stating only: "You certainly can get that from the Superior Court if they want to give it to you." The court set trial for September 13, 1994.
Mr. Ellis then applied to the superior court for a stay of the trial, citing section 1538.5, subdivision (j), which authorizes appeal from a suppression ruling on a misdemeanor complaint. The People filed no opposition and on September 7, 1994, the court denied the request without a hearing or statement of reasons. This petition followed. We issued a stay of the trial pending determination of the petition.
Section 1538.5, subdivision (j), provides in part that "if the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the municipal court or Justice court prior to trial, both the people and defendant shall have the right to appeal any decision of that court relating to that motion to the superior court of the county in which the inferior court is located . . . . " Subdivision (1) provides that if the defendant's motion is granted "the trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts."
The statute does not provide for a stay when the defendant's motion is denied, but it does state that "in case of an appeal by the defendant in a misdemeanor case from the denial of the motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318." ( § 1538.5, subd. (1).) It also provides that this appeal is "the sole and exclusive" remedy prior to conviction, but that a defendant may seek further review of the validity of a search or seizure on appeal from a conviction, even if the conviction is based upon a guilty plea. (Id., subd. (m).)
Mr. Ellis maintains he has an absolute right to a stay pending appeal from denial of his suppression motion. He contends that without such a stay his appeal cannot be perfected and his right to a pretrial appeal will be lost. He asserts that a postconviction appeal is not an "adequate or intended substitute" for the statutory pretrial appeal.
The People point to legislation
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