P. v. Granados

Filed 8/21/06 P. v. Granados CA1/5

Opinion following rehearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

This is an appeal by the People from an order of the trial court dismissing drug related charges after the court granted defendant's new motion to suppress evidence discovered during a traffic stop. Two other judges had previously denied defendant's motion to suppress the same evidence. We reverse.

Factual and Procedural Background

San Francisco Police Officers Kenneth Nieman and Lori Dutra detained defendant Armando Granados after observing him riding his bicycle on the sidewalk. While Officer Dutra asked for defendant's personal information and prepared to issue a citation, Officer Nieman requested consent to search defendant's backpack. Defendant granted consent and the officer discovered marijuana in the backpack. Officer Dutra subsequently also discovered cocaine in the backpack.

The District Attorney of San Francisco County filed an information charging defendant with possession of cocaine for sale (count one; Health & Saf. Code, § 11351.5) and possession of marijuana for sale (count two; Health & Saf. Code, § 11359). After two other judges denied defendant's motion to suppress the drug evidence discovered during the traffic stop, Judge Kay Tsenin granted the motion. Judge Tsenin dismissed the charges against defendant.

Discussion

I. Judge Tsenin's Jurisdiction to Reconsider Judge Haines' Legal Ruling

The People contend that Judge Tsenin lacked jurisdiction to grant defendant's motion to suppress. We conclude that, in the unusual circumstances of this case, the People forfeited that objection by failing to object.

At the preliminary hearing, defendant moved to suppress the evidence obtained from the search of his backpack; Judge Perker Meeks denied the motion. Subsequently, defendant renewed the motion to suppress at a special hearing before Judge Charles Haines. One issue raised during the hearing was whether defendant had identification; if so, that raised the possibility that the detention was unduly prolonged, because the testimony at the preliminary hearing suggested that issuance of the citation was delayed while Officer Dutra called dispatch to verify defendant's identity. The parties submitted the motion to suppress without presenting more testimony to clarify that factual issue, and Judge Haines denied the motion.

Defendant subsequently moved again to suppress on the ground that there was newly discovered evidence that the detention was unduly prolonged. Judge Tsenin heard testimony from Officers Nieman and Dutra that contrary to Officer Nieman's testimony at the preliminary hearing, Officer Dutra did not contact dispatch during the traffic stop. The judge also heard testimony that defendant's wallet contained two pieces of identification. Judge Tsenin granted the motion to suppress, but not because the new evidence showed that the detention was unduly prolonged. In fact, she expressly found that the detention was not unduly prolonged. She concluded that the search was illegal because Officer Nieman's request for consent to search the backpack was not supported by reasonable suspicion of criminal activity. Judge Tsenin's conclusion was a purely legal determination not affected by the new evidence.

Penal Code section 1538.5, subdivision (i)[1] permits a defendant who has made an unsuccessful motion to suppress at a preliminary hearing to renew the motion at a special hearing before trial. As a general rule, determination of the section 1538.5 motion deprives the superior court of jurisdiction to reconsider the matter. (People v. Sotelo (1996) 47 Cal.App.4th 264, 269, citing Madril v. Superior Court (1975) 15 Cal.3d 73, 77-78; see also § 1538.5, subd. (m).) But section 1538.5 does not prohibit a defendant from making a new motion based upon grounds either unavailable or unknown to defendant at the time of his prior motion. (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 611; see also § 1538.5, subd. (h).)

In this case, the justification for the motion to suppress was the discovery of new evidence, but Judge Tsenin did not grant the motion on the basis of the new evidence. She granted the motion based on a legal determination unrelated to the new evidence. In doing so, Judge Tsenin effectively reconsidered Judge Haines' ruling, in violation of section 1538.5.

The People do not dispute that they failed to object to Judge Tsenin's reconsideration of Judge Haines' legal ruling. The People contend that, even if they consented, they were powerless to confer jurisdiction to reconsider the motion. (People v. Thomas (1983) 141 Cal.App.3d 496, 501.)

At issue in this modification of our opinion filed June 15, 2006 is the distinction between lack of subject matter jurisdiction and an act in excess of a court's jurisdiction. The distinction was explained in People v. Williams (1999) 77 Cal.App.4th 436, 447. â€