I concur in the result reached in the majority opinion. However, I do not agree with the dictum that a search and seizure issue in a felony case must be litigated in the superior court in order to “preserve the point for review on appeal. . . .”1 (Ante, at p. 896.) Subdivision (f) of section 1538.5 specifically authorizes a motion to suppress at a preliminary hearing whenever “a felony offense [is] initiated by a complaint.” Subdivision (m) of section 1538.5 permits a defendant who has pleaded guilty in superior court to “seek further review of the validity of a search or seizure on appeal,” as long as he or she litigated the issue “at some stage of the proceedings prior to conviction.”
Since, as the majority concede (ante, at p. 896), a preliminary hearing is a “stage of the proceedings prior to conviction,” a motion to suppress made at that stage is squarely appealable under subdivision (m). However “inappropriate” the members of this court might believe such a procedure to be, the statute has permitted it. As there is no constitutional impediment to the procedure the Legislature has set forth, this court may not ignore the statute.
Since the appellant in the present case did litigate the search and seizure issue in superior court as a Penal Code section 995 motion, the language of the majority opinion on this point is as “unnecessary to the decision” in this case as was the criticized language in People v. Triggs (1973) 8 Cal.3d 884, 887-888. footnote 2 [106 Cal.Rptr. 408, 506 P.2d 232], (See maj. opn., ante, at p. 896. fn. 4.)