Rodgers

Defendant Robert Rodgers appeals his court-tried convictions of transporting marijuana (Health & Saf. Code, § 11360) and possessing marijuana for sale (Health & Saf. Code, § 11359). He contends the hearing judge improperly denied the disqualification motion filed under Code of Civil Procedure section 170.6. The Attorney General agrees. So do we.

Rodgers was indicted and pled not guilty on April 5, 1974. A readiness conference was set for department 18 on June 12. He noticed a motion to suppress (Pen. Code, § 1538.5) in department 18. On the hearing date, the motion was set in department 8 before Judge Levitt. Rodgers’ attorney filed a court-provided declaration form with the criminal presiding department in which he declared he believed Judge Levitt was “prejudiced against his interest” so that he could not have a fair and impartial hearing before him. Rodgers moved for a transfer to another court under Code of Civil Procedure section 170.6.

*994 The presiding judge apparently granted the motion at first, then he struck his signature, and requested the motion be submitted to Judge Levitt. Judge Levitt noted the declaration under section 170.6 had been filed and said it…