People v. Young

Opinion

KINGSLEY, J. Defendants were charged in 11 counts with various narcotic offenses and with various possessions of firearms. They duly moved, under section 1538.5 of the Penal Code, to suppress evidence obtained as a result of their arrest and a search of the residence of defendant Young. The motion was denied by Judge Keene on December 17, 1974. Thereafter, the defendants moved, before Judge Baffa (to whom the case had been duly transferred) to “reopen” their previous motion. After receiving offers of proof and argument, Judge Baffa granted the request to reopen and granted the motion to suppress. The case was then dismissed. The People have appealed under paragraph (7) of subdivision (a) of section 1238 of the Penal Code. We affirm.

No issue is raised on this appeal as to the correctness of Judge Keene’s original order denying the motion to suppress and the People do not, on this appeal, attack the correctness of Judge Baffa’s order. The sole issue raised and argued is whether Judge Baffa had jurisdiction to [51]entertain, prior to trial,1 the request to reopen the motion and to rule on it after reopening.

Although the request was, in form, to “reopen” the hearing on the motion, in fact defendants sought to, and did, make a new motion, based on newly discovered evidence. At the hearing before Judge Keene, the People had relied, in support of their contention that there were reasonable grounds for the arrests and searches, on information received from a confidential informer named Nash. The motion before Judge Baña was based on evidence, allegedly newly discovered, that, in fact, Nash had not been an informer in the present case.2

In support of their appeal, the People rely on the decision of the Supreme Court in Madril v. Superior Court (1975) 15 Cal.3d 73 [123 Cal.Rptr. 465, 539 P.2d 33]. We do not regard Madril as controlling on the facts of this case.

(1) In Madril, as in People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605 [94 Cal.Rptr. 250, 483 P.2d 1202], the second motion was based on the same evidence as had been before the court at the first hearing or on evidence then known to the moving party. But Edmonds distinguishes the situation now before us. The Edmonds court said (at P- 611):