People v. Superior Court

Michael P. Judge, Public Defender, Judith Greenberg, Mark Harvis and John Hamilton Scott, Deputy Public Defenders, for Real Party in Interest.

No appearance for Respondent.

MIRIAM A. VOGEL, J.

When a defendant's motion to suppress evidence has been granted and the action against him dismissed and then refiled, the defendant's subsequent motion to suppress evidence "shall be heard by the same judge who granted the motion at the first hearing if the judge is available." (Pen. Code, § 1538.5, subd. (p).) The question in this case is this: If a peremptory challenge is filed in the second action to disqualify the judge who granted the motion in the first action (Code Civ. Proc, § 170.6), is the judge "available" to hear the second suppression motion? Our answer is no. [1]

In April 2000, Rodrigo Alberto Jimenez was charged by felony complaint with one count of possessing cocaine. In August, Jimenez's motion to suppress the cocaine was granted (Hon. Michael E. Pastor) and the case was dismissed. In October, a second felony complaint was filed charging Jimenez with the same offense based on the same incident. Jimenez again moved to suppress the cocaine. The motion was set for hearing…