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Name: People v. Superior Court (Jimenez)
Case #: B148656
Court: CA Court of Appeal
District 2 DCA
Division: 1
Citation: 90 Cal.App.4th 267

Editor’s note: Review granted. Appellant’s motion to suppress evidence was granted and the original action against him was dismissed. A second felony complaint was refiled, which, under Penal Code section 1538.5, subdivision (p), was required to be heard by the same judge who granted the motion at the first hearing, if he is available. Here, the People had filed a peremptory challenge against the judge who had dismissed the first action. Therefore, the judge was not “available,” and could not hear the second motion to suppress. Although Penal Code section 1538.5, subdivision (p) was added in order to remedy the problem of prosecutorial forum shopping, the plain language of the statute compels a conclusion that a disqualified judge is not “available” to hear a second or subsequent suppression motion. Therefore, the case had to be remanded and ordered transferred to a different judge to hear the new 1538.5 motion.

Opinion Date: 06/28/2001