Ellis

This petition for writ of mandate challenges decisions by the San Mateo County Municipal and Superior Courts refusing to stay the municipal court trial of Scott Anthony Ellis pending his appeal to the appellate department of the superior court from denial of his Penal Code section 1538.5 suppression motion. Appeal is the only pretrial remedy for an erroneous ruling on his suppression motion. The issue raised here is whether a stay is automatic, as claimed by Mr. Ellis, or within the courts’ discretion. We conclude it is a matter of discretion, but that the municipal court failed to exercise its discretion. We direct issuance of a writ of mandate to the municipal court.

On July 20, 1994, Mr. Ellis was charged by complaint in San Mateo County Municipal Court with two misdemeanors: driving under the influence of alcohol and driving without a valid driver’s license (Veh. Code, §§ 23152 & 12500). He moved to suppress evidence under section 1538.5. The motion was heard and denied August 31, 1994. Mr. Ellis promptly presented a notice of appeal from the suppression ruling and asked the municipal court to stay the trial pending resolution of the appeal to the Appellate…