Riva

This appeal raises two issues of first impression. (1) Following a mistrial in a criminal case, may a new judge assigned to the case overrule the previous judge’s pretrial ruling on the defendant’s motion to suppress statements to the police on Miranda grounds? We conclude that although the practice should not be encouraged, the new judge can overrule the previous judge’s order so long as certain due process requirements are met as they were in this case. (2) Does the requirement of Penal Code section 12022.53, subdivision (j) that “the existence of any fact required under [subdivision (d)] shall be alleged in the information” require the allegation of the enhancement be included in each count to which the prosecution seeks to have it imposed? Again we hold that although the better practice is to allege the enhancement with respect to every count on which the prosecution seeks to invoke it, the failure to do so is not fatal so long as the defendant has fair notice of his potential punishment, which he did in this case.

We further conclude the trial court did not err in admitting hearsay evidence under the “spontaneous declaration” exception; failure to instruct the jury…