People v. Schlosser

[1009]

Opinion

REGAN, J.

This is a People’s appeal from an order of the superior court dismissing the action on motion of defendants pursuant to Penal Code section 1387.

1

On February 8, 1977, a felony complaint was filed in the Sacramento Municipal Court charging defendants in count one with possession of cocaine for sale (Health & Saf. Code, § 11351) and in count two with possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). On March 1, 1977, a preliminary hearing was held. At said hearing, a motion to suppress evidence was made pursuant to section 1538.5 of the Penal Code. The motion was granted and the case was dismissed pursuant to Penal Code section 1385.

On March 2, 1977, a second felony complaint was filed, charging the same defendants with the same two ofienses. At arraignment on March 3, 1977, bail was set at $10,000 and the proceeding was continued to March 17, 1977. Prior to that date the prosecutor elected to present the matter to the grand jury; and on March 9, 1977, an indictment was returned which charged the defendants with the same two offenses. In addition, the indictment charged defendant Schlosser with a prior conviction (murder) in 1972, and defendant Meyer with a prior conviction (possession of marijuana for sale) in 1971.

On March 17, 1977, the date set for preliminary hearing, upon motion of the district attorney, the second complaint was dismissed. Counsel having been appointed, defendants were arraigned in superior court on the indictment and entered pleas of not guilty.

On March 30, 1977, a motion to suppress evidence pursuant to section 1538.5 was filed.

On April 22, 1977, the suppression motion was argued but never ruled upon. Instead, the court granted defendants’ oral motion to dismiss on

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