Gabriel Martinez v. Walter E. Craven, Warden

Martinez appeals from an order of the district court denying his habeas petition challenging his state court conviction for violating California Health and Safety Code, § 11500.5 (possession of heroin for sale).

Three points require discussion: (1) Martinez’ claim that the doctrine of res judicata foreclosed the State from relying upon evidence in a second preliminary hearing that had been ruled inadmissible after his prior preliminary hearing; (2) his claim that the warrant, pursuant to which the heroin was seized, was invalid for failure-to specify whether or not it authorized a nighttime search; and (3) his contention that the court’s acceptance of the submission upon the transcript of his second preliminary hearing violated In re Mosley (1970) 1 Cal.3d 913 , 83 Cal.Rptr. 809 , 464 P.2d 473 .

Martinez was bound over for trial following a preliminary hearing on the first information charging him with violation of Health and Safety Code, § 11500.5. He filed a Penal Code § 995 motion to set aside the information, challenging the admission of evidence claimed seized pursuant to an invalid search warrant. His motion was granted on the ground that the search warrant was invalid for…