Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F0500699
RAYE, J.In these confusing writ proceedings brought by the prosecution, real party in interest Angelic Louise Rampone’s (hereafter defendant) written statements were suppressed and found inadmissible under the attorney-client privilege protected by the Sixth Amendment. Some procedural oddities led to the court’s characterization that the statements would be “suppressed,” although defendant had not brought a motion to suppress under Penal Code section 1538.5 and the prosecution had not raised any Fourth Amendment issue. We issued an alternative writ and directed the parties to explain whether the trial court had granted a motion to suppress or an in limine motion and, if the latter, whether the ruling is reviewable by this court.
All further statutory references are to the Penal Code unless otherwise indicated.
The prosecution concedes that a motion in limine is not reviewable. (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 734 (Zolnay); People v. Municipal Court (Ahnemann) (1974) 12 Cal.3d 658, 660-661 (Ahnemann).) In its replication to the return to the alternative writ, the prosecution further points out that the trial court’s order in limine excluding evidence of the written statements is not reviewable and it did not request review of the latter order. Thus the prosecution would have us review the so-called “suppression” ruling even though the written statements will not be admissible at trial based on the in limine ruling that is not before us.
As the prosecution forecast in its argument, the trial court’s first ruling, whether or not that ruling is considered a motion to suppress under section 1538.5, is now moot. The evidence is not admissible at trial even if we were to sustain the prosecution’s position as to the timeliness of a motion to suppress. We reject the prosecution’s speculative justifications for considering the merits of a motion that will have no impact on the pending trial in this case. We therefore will deny the petition for a writ of mandate, discharge the alternative writ, and remand the case for trial.
PROCEDURAL BACKGROUND
On May 15, 2007, defendant filed her motions in limine, including her request “[t]hat a hearing, pursuant to Evidence [C]ode section 402, be held prior to allowing any written statements allegedly made by the defendant be admitted in evidence.” The motion was heard on the day before trial was scheduled. Defendant did not file a motion to suppress her written statements pursuant to section 1538.5, and no mention was made in the written motion in limine of the Fourth Amendment or any issue pertaining to an unreasonable search and seizure.
The hearing was held on May 21, 2007. Neither party argued the Fourth Amendment, nor did they suggest that the motion was brought under section 1538.5. After evidence was admitted and the parties had concluded their argument, the court asked defense counsel the question that precipitated these writ proceedings: “[A]s to the journal or whatever it’s called[,] [¶] I take it, Mr. Marquez, what you’re really doing is asking me to suppress it?” Defense counsel responded, “That’s correct.”
So despite the fact a motion to suppress under section 1538.5 had never been filed or argued, the court thereafter “suppressed” defendant’s written statements. The prosecution immediately declared its intention to file a petition for writ and request to stay the trial. But then on May 28, 2007, the court expressly ruled that the written statements of defendant as a whole fell within the attorney-client privilege.
UNDERLYING FACTS
Defendant has been charged with felony murder. Her lawyer requested her to write down all of her thoughts and memories to assist in the preparation of her defense. Her written statements have been referred to as the “Rampone diary.” At the initial hearing on the motion in limine to exclude the diary from trial, the prosecution introduced the testimony of jail deputies and the court admitted, at the prosecution’s request, the jail inmate handbook as evidence that defendant had no reasonable expectation of privacy. This evidence presumably was admitted to rebut the attorney-client privilege claim.
The court provided a record of factual findings in preparation for the prosecution’s looming writ petition. The court explained, at some length: “There is an agreement by you, Mr. Byrne [prosecutor], that Mr. Marquez’s [defense counsel] statement as to what he told Ms. Rampone and what she would say for the purpose of this hearing was in fact true. I had those things in mind. You told me upfront [sic] that this was taken because Ms. Rampone did not have the material in her legal envelope which was provided to inmates. I see nothing in the inmate information booklet that suggests such a thing exists. Nor do I have any testimony that such a thing was ever given to her or that she was cautioned in its use. The inmate information manual is very specific as to things relating to legal issues to her counsel even if the jailer believes such material might have contraband in it. Sergeant Bell testified to the same thing. It’s opened in front of the inmate, checked for contraband, not read. Inmates are told that is prohibited activity. And the only thing pertinent to all this is on page 5, number ten, possession of contraband such as drugs, tobacco, extra clothing, bedding, matches, lighters, prunos or stingers. On page 6, storage of any personal property or clothing outside of the assigned property drawer with the exception of one towel and shoes. I have no evidence that the quote diary was improperly stored. Number 24, posting or hanging any written material, pictures, et cetera, on cells, bunks, walls. I have no evidence that any of that exhibit was in fact so displayed. The Sheriff’s Facility Search Procedures, People’s 3 for this hearing, item G, all contraband shall be removed; suspected narcotics, knives and illegal contraband shall be photographed and the proper chain of evidence shall be maintained. I have no evidence in front of me that would suggest People’s 4 is in fact contraband. Page 2 of that document, item I, all inmate’s property shall be checked thoroughly and placed back on their bunk. That coupled with the inmate information booklet tells the inmate things relating to their lawyer will not be read as basis for the Court’s finding that the Sheriff violated their own procedure, and People’s 4 in its entirely [sic] should be suppressed. That’s the basis.”
DISCUSSION
As noted above, the prosecution accepts the fact that motions in limine are not reviewable by writ of mandate. (Zolnay, supra, 15 Cal.3d at p. 734; Ahnemann, supra, 12 Cal.3d at pp. 660-661.) The prosecution construes the May 21st ruling not as a motion in limine requesting exclusion of evidence under the attorney-client privilege, but as a motion to suppress subject to review pursuant to section 1538.5, subdivision (o). This is the question we need not address because the court expressly ruled on May 28 that defendant’s written statements were inadmissible under the attorney-client privilege. If we were to decide, as the prosecution urges, that the May 21st motion was transformed into a motion to suppress, that the motion was untimely, and that the court was without jurisdiction to “suppress” the evidence, the statements would remain inadmissible pursuant to the court’s May 28th ruling. As a result, the May 21st ruling has been rendered moot by the court’s ruling on May 28 excluding the same evidence.
The prosecution, however, argues the issue is not moot because the court might change its ruling on the motion in limine and allow a portion of defendant’s statements to be admitted. This might be a reason for defendant to argue the motion was transformed into a motion to suppress and therefore all the statements were suppressed in their entirety. But the argument does not undermine our determination that the May 21st ruling has been rendered moot. The fact that a court might reconsider its evidentiary rulings is a very good reason why motions in limine are not reviewable by way of writ proceedings before trial. But the prosecution, in essence, is asking us to render an advisory opinion on the off chance that the trial court might reconsider its ruling and might overrule itself.
Finally, the prosecution asks us to decide the case on its merits even if it is moot because the issue is of continuing public interest and might evade review in the future. We trust the prosecution to raise the issue again in the unlikely event that a trial court misconstrues a motion in limine as a motion to suppress, ignores the rigorous time restrictions required under section 1538.5, and denies the prosecution due process by considering the merits of a motion to suppress without providing the prosecution notice of the grounds of the motion. We remain confident this case is an anomaly unlikely to recur. Whatever possible mistake the court might have made in its characterization of the issue before it on May 21, its clear ruling on May 28 excluding the written statements rendered the earlier ruling moot.
DISPOSITION
The petition for writ of mandate is denied. The alternative writ is discharged, this court’s stay order is vacated, and the case is remanded for trial.
We concur: NICHOLSON , Acting P.J., CANTIL-SAKAUYE, J.