Ondarza

Petitioner Carlos Roque Ondarza, seeks a pretrial writ of mandate directing the trial court to grant his motion to *199 dismiss (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5). The motions were heard upon the preliminary hearing testimony and the testimony elicited at the de novo hearing on the motions.

The petitioner was charged by information with two counts of soliciting another to receive stolen property (Pen. Code, § 653f, subd. (a)), five counts of attempting to receive stolen property (Pen. Code, §§ 664, 496), and a count of selling and furnishing cocaine (Health & Saf. Code, § 11352).

The evidence sought to be suppressed was seized by the police as a result of a search warrant authorizing the search of petitioner’s residence for a Quasar Video-matic player which was one of the items upon which one of the charges of attempting to receive stolen property was predicated.

A second point raised in the petition is that the trial court should have granted the motion to dismiss the charge of selling cocaine. This contention is grounded upon the assumption that the magistrate at the conclusion of the preliminary hearing determined that there was…

I concur in the judgment and the reasoning of the principal opinion with respect to the motion to dismiss count eight. I also concur in the judgment with respect to the motion to suppress but I reach that result by a different path.

The standard for reviewing an affidavit for a search warrant established by the United States and the California Supreme Courts requires that we construe such an affidavit in a common sense and realistic fashion rather than in a hypertechnical manner. (United States v. Ventresca (1965) 380 U.S. 102, 108-109 [ 13 L.Ed.2d 684, 688-689 , 85 S.Ct. 741 ]; People v. Ruster (1976) 16 Cal.3d 690, 702 [ 129 Cal.Rptr. 153 , 548 P.2d 353 , 80 A.L.R.3d 1269 ]; People v. Mesa (1975) 14 Cal.3d 466, 469 [ 121 Cal.Rptr. 473 , 535 P.2d 337 ]; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711 [ 100 Cal.Rptr. 319 , 493 P.2d 1183 ].) Applying such standard to the affidavit in this case, I conclude that considering all of the circumstances the words “stolen” and “taken” when used by the affiant police officer are synonymous. Justice Holmes has told us that “A word is not a crystal, transparent *207 and unchanged, it is the skin of a living thought and may vary…

Concurring and Dissenting.—I concur in the conclusion that count eight of the information was not transactionally related to the offenses for which petitioner was committed. The lead opinion most correctly criticizes the Eitzen and Farley decisions for ignoring the transactional requirement enunciated in Parks and its progeny.

Nonetheless, I believe the suppression motion relating to the videomatic search warrant should have been granted. Thus, I dissent from the portion of the lead opinion which sustains the denial of that motion.

The lead opinion reasons that the lower court made an implied finding that Santellano had improperly penned “taken” in his police report, thereby rendering the affidavit valid (which used the correct word —“stolen”). There is no support for such a theory in the record of the *208 suppression hearing. The court below discussed whether “stolen” and “taken” were synonymous or materially different in meaning. The lead opinion notes that we cannot draw actual inferences other than those reasonably drawn by the trial court. Given the trial judge’s focus on materiality of the transposition, the lead opinion gratuitously finds an implied finding which was…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Charles P. Just, Nancy L. Sweet and David DeAlba, Deputy Attorneys General, for Real Party in Interest.

OPINION

BROWN (G.A.), P.J.

Petitioner, Carlos Roque Ondarza, seeks a pretrial writ of mandate directing the trial court to grant his motion to dismiss (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5). The motions were heard upon the preliminary hearing testimony and the testimony elicited at the de novo hearing on the motions.

The petitioner was charged by information with two counts of soliciting another to receive stolen property (Pen. Code, § 653f, subd. (a)), five counts of attempting to receive stolen property (Pen. Code, §§ 664, 496), and a count of selling and furnishing cocaine (Health & Saf. Code, § 11352).

The evidence sought to be suppressed was seized by the police as a result of a search warrant authorizing the search of petitioner's residence for a Quasar Video-matic player which was one of the items upon which one of the charges of attempting to receive stolen property was predicated.

A second point…