Prosecutor in infraction trial need not appear to oppose motion to suppress

The People, Plaintiff and Appellant, v. Lula Sophia Gong Cotsirilos et al., Defendants and Respondents., 2020 WL 3396240 (Cal.App. 4 Dist.) (Cal.App. 4 Dist., 2020)


Two defendants cited for underage alcohol infractions filed a motion  to suppress the evidence. The prosecution did not file an opposition or appear at the suppression hearing but did subpoena the two investigating officers. The superior court granted the suppression motions based solely on the People’s failure to respond or appear. The appellate division of the superior court agreed, concluding that while no written opposition was required, the People’s failure to respond or appear compelled suppression.

The Court of Appeal held that in the ordinary infraction case, the prosecution is not required to oppose a motion to suppress by filing an opposition brief or appearing at the suppression hearing. The prosecution may justify  a warrantless search by subpoenaing  law enforcement witnesses, who say  provide narrative testimony to the court in the same manner as would be permitted in the prosecution’s absence at an infraction trial.

The court may call and question witnesses fairly and with limited scope and this  procedure provides a fair hearing, without lessening the prosecution’s burden of proof. It  comports with the flexible procedures allowed in infraction trials under People v. Carlucci (1979) 23 Cal.3d 249 (Carlucci) and People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602 (Kottmeier). The superior court concluded the prosecution’s nonappearance in and of itself compelled suppression. The Court of Appeal   reversed and remanded for a new hearing on the motions to suppress.

Factual and Procedural Background

Defendants Lula Sophia Gong Cotsirilos and Tess Elisabet Edman were stopped and cited for underage possession of alcohol in a public place. (Bus. & Prof. Code, § 25662, subd. (a).) Defendants moved to suppress the evidence seized, arguing the officers lacked reasonable suspicion to detain them. The Office of the San Diego City Attorney which prosecuted the case,  did not file an opposition brief, nor did an attorney from that office attend the suppression hearing. Instead, it subpoenaed the Department of Alcoholic Beverage Control (ABC) officers who issued the citations, both of whom appeared at the hearing.

The court noted that felt bound “under the law” to grant both motions to suppress.

The appellate division of the superior court upheld the trial court and stated that although the People were not required to file written oppositions to the motions to suppress, it could not meet its burden where no response was filed and no appearance made.

Prosecution need not file reply to motion to suppress

Penal Code sections 1538.5 and 1539 “together provide a detailed and comprehensive procedure governing the making, hearing, resolution, and appeal of motions to suppress evidence based on the ground of unlawful search and seizure.” (Johnson, supra, 38 Cal.4th at p. 724, 42 Cal.Rptr.3d 887, 133 P.3d 1044.) Williams, supra, 20 Cal.4th at pages 130 to 131, 83 Cal.Rptr.2d 275, 973 P.2d 52 delineates pleading requirements for motions to suppress. “Although it usually is advisable for the prosecution to file a responsive brief setting forth a justification for a warrantless search or seizure, neither [Penal Code] section 1538.5 nor Williams requires the prosecution to do so.” (Smith, supra, 95 Cal.App.4th at p. 302, 115 Cal.Rptr.2d 483

Prosecution need not appear on suppression motions in infraction cases

There is greater procedural flexibility in infraction cases than is  allowed in felony and misdemeanor cases (See Carlucci, supra, 23 Cal.3d at pp. 257–258, 152 Cal.Rptr. 439, 590 P.2d 15.) There is no constitutional or statutory bar to the court calling and examining prosecution witnesses at an infraction trial in the prosecuting attorney’s absence. (Id. at p. 258, 152 Cal.Rptr. 439, 590 P.2d 15; Daggett, supra, 206 Cal.App.3d at Supp. p. 5, 253 Cal.Rptr. 195; Kottmeier, supra, 220 Cal.App.3d at pp. 611–612, 269 Cal.Rptr. 542.) A court may ask  subpoenaed law enforcement witnesses for a narrative recital of events. (Kottmeier, at pp. 611–612, 269 Cal.Rptr. 542; Carlucci, at pp. 256, 258, 152 Cal.Rptr. 439, 590 P.2d 15.) A court may  not dismiss or acquit an ordinary infraction case at trial based solely on a prosecutor’s nonappearance.

Financial burden of requiring prosecutors at infraction trials

“Economic realities preclude the presence of prosecuting attorneys at most infraction trials.” (Marcroft, supra, 6 Cal.App.4th at Supp. p. 4, 8 Cal.Rptr.2d 544.) This applies to  suppression hearings in most infraction cases.

The Court held that the prosecution may meet its burden of proof on a motion to suppress in an infraction case by subpoenaing  witnesses to provide a narrative account at the suppression hearing without a prosecuting attorney present. A superior court’s conduct in the prosecutor’s absence must be “fair and properly limited in scope.” (Carlucci, supra, 23 Cal.3d at p. 255, 152 Cal.Rptr. 439, 590 P.2d 15.) The court must avoid advocacy or any appearance of bias. “The very absence of a prosecuting attorney makes it all the more important that the court at such [hearings] use the utmost care to preserve not only the reality but also the appearance of fairness and lack of bias.” (Marcroft, at p. 4, 8 Cal.Rptr.2d 544.)


The Court reversed the orders granting defendants’ motions to suppress and remanded the case for a new hearing on defendants’ motions. If the prosecuting attorney does not appear at that hearing and subpoenas witnesses, the court may call and examine those witnesses in a limited manner consistent with the guidance provided in this opinion.



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