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Name: People v. Rodriguez
Case #: H038588
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/06/2014
Subsequent History: Review granted 3/11/2015: S223129

Despite statutory requirement that renewed motion to suppress be assigned to the same judge who previously granted it, a presiding judge has inherent authority to assign the case to a different judge in order to accommodate court scheduling. After denial of his motion to suppress evidence, appellant was convicted of possession of child pornography (Pen. Code, § 311.11, subd. (a)). On appeal he challenged the denial of his suppression motion and the trial court’s refusal to assign his re-litigated motion to the judge who had earlier granted it. Held: Affirmed. Appellant’s initial motion to suppress was denied by Judge Northway at the preliminary hearing. He renewed his motion in superior court where Judge Chiarello granted it, after finding appellant’s consent to search his house was coerced. The case was dismissed. The prosecution re-filed the case and appellant again renewed his motion to suppress, asking that the case be assigned to Judge Chiarello. The Presiding Judge denied appellant’s request to assign the case to Judge Chiarello, because he had been assigned to another court. A different judge heard the motion and denied it. This was not an abuse of discretion. Section 1538.5, subdivision (p) requires that a relitigated suppression motion be heard by the same judge who granted the motion in the first hearing if that judge is “available,” although the statute does not define that term. The legislative purpose of the statute is to discourage prosecution forum shopping. The presiding judge has inherent discretion to assign matters and make a determination the first judge is unavailable, notwithstanding section 1237.5, subdivision (p).

Appellant’s motion to suppress was properly denied. At the renewed motion to suppress, Judge Zercher found appellant’s consent to search was voluntary. The officers who went to appellant’s house to investigate suspected possession of child pornography advised appellant that if he would not allow them to search, they would obtain a warrant, come back, and kick in the door. Judge Zercher found this statement not coercive to the extent it violated appellant’s Fourth Amendment rights and the evidence supported this finding.

Several of appellant’s probation conditions must be amended to include a scienter requirement. Two of appellant’s probation terms prohibited him from possessing child pornography or any data encryption technique program. Without an express knowledge requirement, appellant could violate these terms unwittingly by not knowing he possessed such items. Declining the Attorney General’s request that it follow the Third District’s decision in People v. Patel (2011) 196 Cal.App.4th 956 [stating that court would no longer entertain such issues, but would construe probations conditions as containing a scienter requirement] the court here modified the terms to add an express knowledge requirement. (Citing In re Sheena K. (2007) 40 Cal.4th 875 and Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)