People v. Stearns, 35 Cal. App. 3d 304 (Cal. Ct. App. 1973). · Go Syfert
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People v. Stearns, 35 Cal. App. 3d 304 (Cal. Ct. App. 1973). Cases Citing This Book View Copy Cite
19 citation events across 1 distinct court.
Strongest positive: People v. Meyer (calctapp, 1986-07-30)
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) People v. Meyer
Cal. Ct. App. · 1986 · confidence medium
(People v. Padfield (1982) 136 Cal.App.3d 218, 227 [ 185 Cal.Rptr. 903 ]; People v. Ribero (1971) 4 Cal.3d 55, 63 [ 92 Cal.Rptr. 692 , 480 P.2d 308 ].) “[Ijssues which merely go to the guilt or innocence of a defendant are ‘removed from consideration’ by entry of the plea.” (People v. Shults (1984) 151 Cal.App.3d 714, 719 [ 199 Cal.Rptr. 33 ].) Thus, claims involving sufficiency of the evidence (People v. Warburton (1970) 7 Cal.App.3d 815 [ 86 Cal.Rptr. 894 ]), voluntariness of an extrajudicial statement (People v. DeVaughn (1977) 18 Cal.3d 889, 896 [ 135 Cal.Rptr. 786 , 558 P.2d 872 ]…
discussed Cited as authority (rule) People v. Mink
Cal. Ct. App. · 1985 · confidence medium
The appellate courts have found themselves without jurisdiction, in cases involving appeals from judgments entered after guilty pleas, to consider issues such as the voluntariness of defendant's extrajudicial statement (when it is not the product of an allegedly unlawful search or seizure) ( People v. DeVaughn [1977] 18 Cal.3d 889, 896 [ 135 Cal. Rptr. 786 , 558 P.2d 872 ]), the trial court's refusal to postpone the trial ( People v. Kaanehe, supra, 19 Cal.3d 1, 9 ), the trial court's denial of the motion to disclose the identity of the informant ( People v. Barkins (1978) 81 Cal. App.3d 30, 3…
discussed Cited as authority (rule) People v. Mink
Cal. Ct. App. · 1985 · confidence medium
The appellate courts have found themselves without jurisdiction, in cases involving appeals from judgments entered after guilty pleas, to consider issues such as the voluntariness of defendant’s extrajudicial statement (when it is not the product of an allegedly unlawful search or seizure) (People v. DeVaughn [1977] 18 Cal.3d 889, 896 [ 135 Cal.Rptr. 786 , 558 P.2d 872 ]), the trial court’s refusal to postpone the trial (People v. Kaanehe, supra, 19 Cal.3d 1, 9 ), the trial court’s denial of the motion to disclose the identity of the informant (People v. Barkins (1978) 81 Cal.App.3d 30, …
discussed Cited as authority (rule) People v. Turner
Cal. Ct. App. · 1985 · confidence medium
Thus the appellate courts have held that a guilty plea waives issues involving the admissibility of defendant’s extrajudicial admissions or confessions (People v. Pettingill (1978) 21 Cal.3d 231, 235, fn. 1 [ 145 Cal.Rptr. 861 , 578 P.2d 108 ]; People v. DeVaughn, supra, 18 Cal.3d at p. 896 ), a refusal to compel disclosure of an informant (People v. Barkins (1978) 81 Cal.App.3d 30, 33 [ 145 Cal.Rptr. 926 ]), the sufficiency of the evidence either before the grand jury or at trial (People v. Meals (1975) 49 Cal.App.3d 702, 706-707 [ 122 Cal.Rptr. 585 ]; People v. Warburton (1970) 7 Cal.App.3…
discussed Cited as authority (rule) People v. Hayton
Cal. Ct. App. · 1979 · confidence medium
The court stated: “Insufficiency of the evidence before the grand jury or at the preliminary examination is ‘jurisdictional’ in the special procedural sense that the ruling of the trial court may be reviewed by writ of prohibition under Penal Code section 999a. [Citation.] But the defect is not jurisdictional in the fundamental sense, because ... it is subject to waiver.” (People v. Warburton, supra, 7 Cal.App.3d at p. 821 .) In People v. Ribero, supra, 4 Cal.3d 55, 63, the California Supreme Court discussed the types of issues which may be considered on an appeal from a judgment enter…
discussed Cited as authority (rule) People v. Glover
Cal. Ct. App. · 1974 · confidence medium
See, generally, People v. Ribero, 4 Cal.3d 55, 63 [ 92 Cal.Rptr. 692 , 480 P.2d 308 ], and cases collected; People v. Stearns, 35 Cal.App.3d 304, 306 [ 110 Cal.Rptr. 711 ]; People v. Archuleta, 16 Cal.App.3d 295, 299-300 [ 93 Cal.Rptr. 881 ]; People v. Warburton, 7 Cal.App.3d 815, 821 [ 86 Cal.Rptr. 894 ], cert. den., 400 U.S. 1022 [ 27 L.Ed.2d 634 , 91 S.Ct. 587 ].) 2 Defendant’s challenege is based on constitutional rather than statutory grounds.
discussed Cited "see, e.g." People v. Galan (2×)
Cal. Ct. App. · 1985 · signal: see also · confidence medium
This is so because Hitch is a due process case and protects Fifth Amendment rights while the rights addressed by section 1538.5 are Fourth Amendment rights seeking to safeguard individuals against unreasonable searches and seizures. {People v. Ahern (1984) 157 Cal.App.3d 27, 32 [ 204 Cal.Rptr. 11 ]; People v. Brown (1981) 119 Cal.App.3d 116, 124 [ 173 Cal.Rptr. 877 ].) Furthermore, the motion under section 1538.5 is one “in the nature of a proceeding in rem against the evidence itself” which is directed “to the legality of specific items of evidence obtained by a search and seizure.” {…
discussed Cited "see, e.g." People v. Duncan (2×)
Cal. Ct. App. · 1974 · signal: see also · confidence medium
See also People v. Stearns (1973) 35 Cal.App.3d 304, 306 [ 110 Cal.Rptr. 711 ]; People v. Serrano (1973) 33 Cal.App.3d 331, 338 [ 109 Cal.Rptr. 30 ]; People v. Archuleta (1971) 16 Cal.App.3d 295, 299-300 [ 93 Cal.Rptr. 881 ]; and People v. Warburton (1970) 7 Cal.App.3d 815, 821-822 [ 86 Cal.Rptr. 894 ] [cert. den. (1971) 400 U.S. 1022 ( 27 L.Ed.2d 634 , 91 S.Ct. 587 )].) In the last cited case the court noted that the issue must be one which “goes to the jurisdiction or the legality of the trial court proceedings in any fundamental sense.” ( 7 Cal.App.3d at p. 821 .) This is not a case whe…
The PEOPLE, Plaintiff and Respondent,
v.
JACK GENTRY STEARNS, Defendant and Appellant
Crim. 22986.
California Court of Appeal.
Nov 14, 1973.
35 Cal. App. 3d 304
Counsel, James M. Epstein, under appointment by the Court of Appeal, for Defendant and Appellant., Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Norman H. Sokolow and James H. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
Files.
Cited by 10 opinions  |  Published

Opinion

FILES, P. J.

On this appeal defendant seeks to attack the fairness of a lineup in which he was identified by a witness as the perpetrator of a homicide.

Defendant was arrested, placed in a lineup, and identified by a witness. He was charged by information with murder (Pen. Code, § 187) and found guilty by a jury of first degree murder. His conviction was reversed on appeal because of errors of law in instructing the jury (People v. Stearns (1971) 14 Cal.App.3d 178 [92 Cal.Rptr. 69]), and the cause was restored to the superior court calendar.

Subsequently defendant made what counsel called a “Wade-Gilbert motion” to suppress certain identification testimony upon the ground that the lineup had been unfair. Testimony was received, going to the lineup issue. This motion was denied on May 31, 1972. A jury trial commenced but a mistrial was declared when the jury became deadlocked. Then, pursuant to a plea bargain, defendant pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. 1), proceedings were suspended, and defendant was placed on probation for three years.

Defendant now appeals “from a plea of guilty and the subsequent sentence” on the ground that his “pretrial motion to suppress the identification of said defendant as the perpetrator of the crime” was erroneously “denied on May 31, 1972 . . . because said identification was forever tainted by[*306] an unconstitutionally composed lineup.” Defendant’s appeal will be construed as an appeal from the judgment (order granting probation). (Pen. Code, § 1237.)

Counsel for defendant argues that the pretrial ruling with respect to the lineup is reviewable on appeal after a guilty plea by analogy with Penal Code section 1538.5, subdivision (m). [1] Counsel points out that a pretrial motion to suppress is recognized as a proper means of challenging the fairness of a lineup. (See People v. Martin (1970) 2 Cal.3d 822, 832, fn. 11 [87 Cal.Rptr. 709, 471 P.2d 29]; People v. Smith (1969) 273 Cal.App.2d 547, 552 [78 Cal.Rptr. 405].)

Even though the challenge to the lineup is heard at a special pretrial motion, it is not a motion under Penal Code section 1538.5, since that section applies only to evidence sought to be suppressed as the product of a search and seizure. (See People v. Morrow (1969) 276 Cal.App.2d 700, 703 [81 Cal.Rptr. 201]; People v. Smith, supra.) The special statutory procedure of section 1538.5, including the provisions of subdivision (m) allowing an appeal after a guilty plea, is not applicable to other kinds of pretrial rulings. (See People v. Warburton (1970) 7 Cal.App.3d 815, 820 [86 Cal.Rptr. 894]; People v. Archuleta (1971) 16 Cal.App.3d 295 [93 Cal.Rptr. 881].) The fairness of the lineup became immaterial after defendant pleaded guilty, and the ruling is not reviewable on this appeal.

The record contains no irregularity going to the guilty plea, or to the order granting probation which followed.

The judgment (order granting probation) is affirmed.

Jefferson, J., and Kingsley, J., concurred.

A petition for a rehearing was denied November 28, 1973, and petition for a hearing by the Supreme Court was denied January 10, 1974.

1

Penal Code section 1538.5, subdivision (m), provides: “. . . A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.”