Hewitt v. Superior Court

In Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, defendant had made a motion, at the preliminary hearing, to suppress evidence under section 1538.5 of the Penal Code. That motion was denied by the magistrate. In the superior court, defendant renewed his motion; the trial court examined the transcript of the testimony taken before the magistrate and, on reading that transcript, also denied the motion. The appellate court ruled that that was error and that defendant was entitled to a de novo hearing in the superior court at which evidence would again be presented to the superior court judge. However, section 1538.5, expressly provides, in subdivision (i) as follows: "(i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by the indictment, the defendant shall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after notice to the people unless the people are willing to waive a portion of this time. The defendant shall have the right to litigate the validity of a search de novo on the basis of the evidence presented at a special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his motion at the special hearing."