Barnes

Petitioner Dale Sheldon Barnes, seeks a writ of mandate directing the trial court, Judge Teri Schwartz, to vacate its order denying his request to have his second motion to suppress evidence heard by the same judge who granted his first motion, Judge Terry Smerling. Barnes asserts the trial court erred in concluding the People’s affidavit, filed as to Judge Smerling pursuant to Code of Civil Procedure section 170.6, precluded the judge from hearing Barnes’s second motion to suppress evidence under the provisions of Penal Code section 1538.5, subdivision (p).

For the reasons stated below, we agree with Barnes. Under the provisions of Penal Code, section 1538.5, subdivisions (j) and (p), his second motion to suppress evidence was required to be heard by the same judge who granted his first motion. Accordingly, we order that a writ of mandate shall issue.

Factual and Procedural Background

On August 18, 1998, Barnes was charged with possession of .36 grams of a substance containing cocaine, in violation of Health and Safety Code section 11350, subdivision (a). It was further alleged Barnes had suffered prior prison terms and 15 prior convictions within the meaning of Penal…