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									Filed 8/24/11 P. v. Shelton CA4/2

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                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


         Plaintiff and Appellant,                                        E052355

v.                                                                       (Super.Ct.No. INF10001349)

DANIEL SHELTON,                                                          OPINION

         Defendant and Respondent.

         APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,

Judge. Dismissed.

         Paul Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for

Plaintiff and Appellant.

         Kenneth Nordin, under appointment by the Court of Appeal, for Defendant and


         Defendant Daniel Shelton brought a motion to suppress evidence (Pen. Code,

§ 1538.5) to be heard at the time of the preliminary hearing on a complaint alleging

unlawful possession of methamphetamine at a casino owned by the Cabazon Band of
Mission Indians.1 The motion was granted and defendant was discharged. The People

did not bring a motion in the superior court to reinstate the complaint pursuant to Penal

Code section 871.5, filing a notice of appeal instead. Because an order granting a motion

to suppress evidence by a magistrate is not appealable under Penal Code section 1238, we

dismiss the appeal.


       Donovan Mager (Mager) is a public safety officer employed at the Fantasy

Springs Casino, which is owned by the Cabazon Band of Mission Indians (the tribe).

Mager did not attend or graduate from a police academy. His job involved the protection

of casino and tribal assets, and his duties require him to patrol the casino gaming floor

and casino grounds, among other areas of the reservation. Tribal security officers have

the authority to detain persons suspected of crimes, and to enforce the policies and

procedures of the casino, but not to arrest.

       As a security officer, Mager has the authority to undertake Terry2 patdown

searches, and to detain someone for the Riverside Sheriff‟s Department.

       The usual procedure is for a security officer, who is armed and in uniform, to

make contact with the individual, escort the individual to an interview room if “justified

cause” exists, conduct a patdown search, serve the individual with exclusion papers, and

       1 The prosecutor referred to the tribe as the Cahuilla Band of Mission Indians but
the public safety officer, Donovan Mager, testified he is employed by the Cabazon Band
of Mission Indians.

       2   Referring to Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].

then release the person. The tribe authorizes security officers to exclude people from the

casino and to enforce its policies and procedures. If a person is detained for a criminal

violation, the security officer will hold the individual until the local law enforcement

agency picks the individual up.

       On June 16, 2010, at approximately 6:00 p.m., Mager was notified by surveillance

that defendant was using different Players Club cards in a slot machine in the casino.

Players Club cards are issued by the casino in the name of an individual patron and are

inserted into slot machines. The cards are not transferrable. When contacted, defendant

produced his identification and admitted using his friends‟ cards in the slot machine.

Mager asked defendant to accompany him to take care of paperwork and informed

defendant he would be subject to a 72-hour exclusion from the property.

       Mager obtained surveillance footage from the surveillance team, and escorted

defendant to the interview room. The interview room is a 10-by-10 room with a bench

and a magnetic gate that locks from outside the room. Then Mager informed defendant

that he was going to pat him down for officer safety according to casino policy, and

defendant pulled a glass pipe used for ingesting controlled substances from his front

pocket. Mager patted defendant down and found approximately 12 Players Club cards,

all in different names, none of which was defendant‟s name. Mager also found a small

baggie of white crystalline powder that was later tested and found to be

methamphetamine. Defendant was handcuffed at some point prior to the arrival of the

sheriff‟s deputy.

       A sheriff‟s deputy placed defendant under arrest. The sheriff‟s deputy

admonished defendant of his right to remain silent (Miranda v. Arizona (1966) 384 U.S.

436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), and defendant agreed to speak with the deputy.

Defendant admitted he had a pipe in his pocket and acknowledged that the bindle of

suspected methamphetamine was his.

       The People filed a complaint alleging that defendant unlawfully possessed

methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1) and paraphernalia

used to smoke substances. (Health & Saf. Code, § 11364, subd. (a), count 2.) It was

further alleged that defendant had previously been convicted of a serious or violent

felony within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (c), (e)(1),

1170.12, subd, (c)(1)), and three prison priors. (Pen. Code, § 667.5, subd. (b).)

       Prior to the preliminary hearing, defendant filed a motion to suppress evidence.

(Pen. Code, § 1538.5.) By stipulation, the motion was heard at the time of the

preliminary hearing. After hearing testimony in connection with the suppression motion

and preliminary hearing, the magistrate granted the motion to suppress evidence and

discharged defendant. The People filed a notice of appeal.


       The People argue that the trial court erred in granting the motion to suppress

evidence because the California Constitution prohibits exclusion of evidence unless it is

required by a ruling of the United States Supreme Court, and because there are no United

States Supreme Court decisions extending the exclusionary rule to Indian tribes under the

Indian Civil Rights Act. (25 U.S.C. § 1301 et seq.) Unfortunately, because the People

failed to bring a motion to reinstate the complaint pursuant to Penal Code section 871.5,

the magistrate‟s ruling is not appealable.3

       The Magistrate’s Ruling at or Prior to the Preliminary Hearing Is Not

       Appealable Pursuant to Penal Code Section 1238.

       The People assert that the magistrate‟s ruling is appealable pursuant to Penal Code

section 1238, subdivision (a)(7). We disagree.

       Except under limited circumstances, enumerated in Penal Code section 1238, the

People have no right to appeal in criminal cases. (People v. Drake (1977) 19 Cal.3d 749,

754; People v. Leonard (2002) 97 Cal.App.4th 1297, 1299.) Subdivision (a)(7) of Penal

Code section 1238 permits an appeal by the People from “[a]n order dismissing a case

prior to trial made upon motion of the court pursuant to Section 1385 whenever such

order is based upon an order granting the defendant‟s motion to return or suppress

property or evidence made at a special hearing as provided in this code.” Penal Code

section 1238, like section 1466, provides for appeal from certain orders and judgment of

trial courts, not magistrates. (People v. Superior Court (Chico etc. Health Center) (1986)

187 Cal.App.3d 648, 655.)

       The “special hearing” referred to in Penal Code section 1238, subdivision (a)(7), is

a hearing on a suppression motion, made in the superior court after the filing of an

information or indictment, as provided by Penal Code section 1538.5, subdivision (i).

       3 Because the appeal must be dismissed, we do not reach the merits of the issue
which was briefed, except to note that the theory asserted on appeal was not presented to
the lower court for determination. Absent considerations not present here, a new theory
may not be raised for the first time on appeal where the defendant had no notice of the
new theory and the court had no opportunity to consider it. (Green v. Superior Court
(1985) 40 Cal.3d 126, 137-138; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.)

When a motion is made in the superior court after the defendant has been held to answer

at the preliminary hearing, and has been granted after a special hearing, subdivision (o) of

Penal Code section 1538.5 provides that the People may seek appellate review of a trial

court‟s ruling by filing a petition for writ of mandate or prohibition. (People v.

Carrington (1974) 40 Cal.App.3d 647, 649.)

       A ruling on a suppression motion made by a magistrate at or before the

preliminary hearing is not “made at a special hearing” in the superior court within the

meaning of Penal Code section 1238, subdivision (a)(7). A magistrate presiding at a

preliminary hearing does not sit as a judge of a court, and exercises none of the powers of

judges in court proceedings. (People v. Richardson (2007) 156 Cal.App.4th 574, 584,

quoting People v. Newton (1963) 222 Cal.App.2d 187, 189.) A magistrate‟s powers at a

felony preliminary hearing are purely statutory. (People v. Superior Court (Feinstein)

(1994) 29 Cal.App.4th 323, 328.) When a judge acts in the capacity of a magistrate, he

or she does not do so as a judge of a particular court but rather as one who derives his

powers from the provisions of Penal Code sections 807 and 808. (People v. Superior

Court (Chico etc. Health Center), supra, 187 Cal.App.3d at p. 654.)

       A magistrate‟s determination that there is not sufficient cause to believe the

defendant guilty of a public offense results in a dismissal pursuant to Penal Code section

871, because it precludes a prosecutor from proceeding to trial on the offenses originally

charged. (People v. Williams (2005) 35 Cal.4th 817, 828-829; People v. Wallace (2004)

33 Cal.4th 738, 749-750.) A magistrate also may dismiss a complaint under Penal Code

section 1385, either of his or her own motion or upon application of the prosecuting

attorney, in the furtherance of justice. (Pen. Code, § 1385, subd. (a).) If the magistrate

dismisses the complaint under either provision, the People may move in the superior

court under Penal Code section 871.5 to reinstate the complaint. (Pen. Code, § 871.5,

subd. (a); People v. Konow (2004) 32 Cal.4th 995, 1000-1001; People v. Dawson (2009)

172 Cal.App.4th 1073, 1087.)

       When the magistrate at a preliminary hearing grants a defense motion to suppress

evidence, declines to hold the defendant to answer for the charged offenses, and

consequently dismisses the complaint, subdivision (j) of Penal Code section 1538.5 gives

the prosecution three options: it may (1) file a new complaint, (2) seek an indictment

after the preliminary hearing, or (3) move to reinstate the complaint pursuant to Penal

Code section 871.5. (People v. Toney (2004) 32 Cal.4th 228, 232.) Penal Code section

871.5 gives the superior court jurisdiction to review an order of a magistrate dismissing a

felony complaint following the granting of a Penal Code section 1538.5 motion to

suppress evidence. (People v. Salzman (1982) 131 Cal.App.3d 676, 683, citing Vlick v.

Superior Court (1982) 128 Cal.App.3d 992, 998.)

       Dismissal of a complaint by a magistrate based upon a ruling on legal grounds on

any motion properly before and decided by the magistrate is subject to review by the

superior court on motion by the People on the ground that, “„as a matter of law, the

magistrate erroneously dismissed the action.‟” (Vlick v. Superior Court, supra, 128

Cal.App.3d at p. 999.) Thus, a motion brought by the prosecution under Penal Code

section 871.5 is not a relitigation of the defendant‟s suppression motion. Instead, it is

simply a means to have the superior court determine the legal propriety of the

magistrate‟s dismissal of the complaint after granting the defendant‟s motion to suppress

evidence. (People v. Toney, supra, 32 Cal.4th at p. 233.) Section 871.5 is the exclusive

method by which the People may obtain a review of a magistrate‟s order of dismissal.

(People v. Shrier (2010) 190 Cal.App.4th 400, 409, citing People v. Mimms (1988) 204

Cal.App.3d 471, 481.)

       Here, the defendant was not held to answer at the preliminary hearing because

there was insufficient evidence to hold defendant to answer after the magistrate granted

the suppression motion. Because there was no information filed in the superior court, and

no suppression motion filed in the superior court, there was no “special hearing” in the

superior court within the meaning of Penal Code section 1538.5, subdivision (i). The

proper procedure would have been for the People to seek reinstatement of the complaint

pursuant to Penal Code section 871.5.

       Because the dismissal did not occur after a “special hearing” after the defendant

was held to answer at a preliminary hearing, the magistrate‟s ruling on the suppression

motion was not appealable pursuant to Penal Code section 1238, subdivision (a)(7).


       The appeal is dismissed.

We concur:



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