Workman

The important question presented by this appeal is whether, when the magistrate suppresses evidence at the preliminary hearing, the prosecutor can dismiss the complaint and relitigate the issues after filing a second complaint rather than seeking review of the unfavorable ruling. The issue involves reconciling subdivisions (d) and (j) of Penal Code section 1538.5. 1 We conclude subdivision (j) applies under the facts of this case, and the second filing and issue relitigation were proper. We further hold the trial court erred in finding that appellants had standing to challenge the search of codefendant Stuart’s business, and we reject appellants’ contentions of sentencing error. We affirm the judgments.

Statement of the Case

Appellants Michael Wayne Matlock, Harry Ralph Workman and Charles M. Petrillose, together with three other defendants, John Stuart, Kenneth Ward and Jerry Hardiman, were charged with numerous thefts arising from an oil stealing scheme. The prosecutor filed a 25-count complaint and commenced a preliminary examination in April 1985. After nine weeks of testimony, the magistrate granted motions to suppress by Petrillose and Stuart. Upon motion by the…

A petition for a rehearing was denied May 9, 1989, and appellants’ petition for review by the Supreme Court was denied July 20, 1989. Mosk, J., was of the opinon that the petition should be granted.

Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

[Opinion certified for partial publication. [*] ]

OPINION

FRANSON, P.J.

(1a) The important question presented by this appeal is whether, when the magistrate suppresses evidence at the preliminary hearing, the prosecutor can dismiss the complaint and relitigate the issues after filing a second complaint rather than seeking review of the unfavorable ruling. The issue involves reconciling subdivisions (d) and (j) of Penal Code section 1538.5. [1] (2a) We conclude subdivision (j) applies under the facts of this case, and the second filing and issue relitigation were proper. We further hold the trial court erred in finding that appellants had standing to challenge the search of codefendant Stuart's business, and we reject appellants' contentions of sentencing error. We affirm the judgments.

Appellants Michael Wayne Matlock, Harry Ralph Workman and Charles M. Petrillose, together with three other defendants, John Stuart, Kenneth Ward and Jerry Hardiman, were charged with numerous thefts arising from an oil stealing scheme. The prosecutor filed a 25-count complaint and commenced a preliminary examination in April 1985. After nine weeks of testimony, the magistrate granted motions to…