Werber

Defendant appeals from a judgment entered upon jury verdicts convicting him of cultivation and possession of marijuana.

Legality of Arrest and Search

Appellant first challenges the lawfulness of his arrest and the search of his residence, contending that the arresting officers lacked probable cause, failed to comply with Penal Code section 844, and that the search was neither incident to his arrest nor reasonable in scope.

At the outset respondent claims that appellant is precluded from seeking direct review of the lawfulness of the search because this court has already denied without opinion his petition for writ of mandate upon the same issue. (Werber v. Superior Court, County of Marin, 1 Civ. No. 26656, pet. den. May 26, 1969, hg. den. June 25, 1969.) Appellant responds that the absence of any indication that this court fully considered the merits of the issue on the denial of his writ does not preclude direct review on appeal. Authority directly in point, supports appellant’s position.

“Under the statute [Pen. Code, § 1538.5] a defendant is entitled to make only one pretrial motion to suppress evidence in the superior court and if it is denied his only remedy is,…