People v. Superior Court

This matter is before us on the People’s petition for writ of mandate directing respondent court to annul its order of April 6, 1970, granting defendants’ motion under section 1538.5, Penal Code, and suppressing evidence in a pending criminal prosecution against defendants Green and Ramsey. We issued ah alternative writ commanding respondent court to annul its order or to show cause why it had not done so. The order not having been annulled on the return day, the cause was heard and argued. We conclude that respondent court had no jurisdiction to rehear the motion under section 1538.5, Penal Code, prior to trial and that the writ should issue.

Defendants, charged with violations of sections 11530.5 and 11531, Health and Safety Code, moved under section 1538.5, Penal Code, to suppress certain evidence on the ground that it was recovered as the result of an illegal entry, search and seizure. The motion was heard on October 8, 1969, before Judge Howard H. Schmidt. At the outset Richard T. Sykes, who represented both defendants, advised the court that while there might be a possible conflict of interests between defendants at trial, “there is no conflict through the 1538.5…