PEOPLE v. RODRIGUEZ

Appellant’s Request for Judicial Notice

Cal.June 12, 2015

SUPREME COURT JonathanE. Berger, SBN 203091 FILED 1415 Fulton Road #205-170 Santa Rosa, CA 94503 JUN 19 2015 Phone: (707) 206-6649 Fax: (707) 824-0848 _ Frank A. McGuire Clerk Email: jonbergerlaw@gmail.com Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. S$223129 Plaintiff and Respondent, Court of Appeal No. H038588 Vv. (Santa Clara County Superior Court No. C111340) ADAM SERGIO RODRIGUEZ, MOTIONFOR JUDICIAL Defendant and Appellant. NOTICE MOTION FOR JUDICIAL NOTICE TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Pursuantto rule 8.252 of the California Rules of Court, and to Evidence Codesections 452 and 459, appellant Adam Sergio Rodri- guez, by and through his attorney Jonathan E. Berger, respectfully requests that this Court take judicial notice of a legislative-history documentprepared by Legislative Research & Intent, LLC, and of the local rules of the Santa Clara County Superior Court, as they relate to the issues set forth in the Opening Brief on the Merits whichis filed and served contemporaneously herewith. Copies of the two documentsare attached hereto as Exhibits A andB. This motion is based on the following MemorandumofPoints and. Authorities and Declarationof JonathanE.Berger. Dateddune {I Qos5 Signature: Lh6 Sebastopol, CA mathan E. Berger ounsel for Appellant MEMORANDUMOF POINTS AND AUTHORITIES I. Procedural background. Appellant's first suppression motion was denied at his pre- liminary hearing. Hethen filed a renewed suppression motion to be heard at a special hearing in felony court. That motion was granted, whereuponthe prosecution dismissed and re-filed the case. Over the course of the next eleven months, appellant made repeated attempts to have a new suppression motion heard by the judge who had granted the motionin the first case, pursuant to the requirementset forth in Penal Code section 1538.5, subdivision (p) (hereafter “PC § 1538.5(p)”) that after the dismissal and re-filing of a case, “Relitigation of the [suppression] motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.” Appellant was stymied in these attempts by the holding of the presiding judge of the Santa Clara County Supe- rior Court that the judge who had granted the suppression motion was “unavailable” because he had been assigned to a different courthouse. However, that “unavailable” judge presided over ap- pellant’s court trial and subsequent sentencing. In a published opinion, the Sixth District Court of Appeal affirmed appellant's conviction on the basis that “the presiding judge has discretion to manage the court calendar and assign matters to various divisions and judges across the courts of the county.” (People v. Rodriguez (2014) 231 Cal.App.4th 288, 301.) In his Opening Brief on the Merits filed and served contempo- raneously herewith, appellant arguesthat the trial court was obliged to adopt policies that carry out the legislative intent behind PC § 1538.5(p). The legislative-history documents which are the subject of the instant motion (Exhibit A) are relevant to the appeal because they clearly set forth that legislative intent. One aspect of appel- lant’s argument is that a local rule of the Santa Clara County Superior Court provides that any adult criminal case may be heard in any courtroom within the court system. The document contain- ing the court's local rules (Exhibit B) is relevant to the appeal because it provides authority for that proposition. (See Cal. Rules of Court, rule 8.252(a)(2)(A).) II. Judicial notice California courts may take judicial notice of appropriate mat- ters. (Evid. Code,! §§ 450 et seq.) This authority extends to appellate courts as well asto trial courts. (§ 459, subd.(a)(2).) A. Santa Clara County Superior Court rules Section 452 lists matters of which the court may take judicial notice upon request provided that the requirements of section 453 are met. Thelist includes “Rules of court of ... any court of this state.” (§ 452, subd. (e).) Exhibit B hereto is a list of the criminal rules of court of the Santa Clara County Superior Court, a court of this state. It is, therefore, judicially noticeable pursuant to that sub- division. (See Cal. Rules of Court, rule 8.252(a)(2)(C).) B. Legislative history Section 453 also lists “Official acts of the legislative . . . de- partment[] of ... any state of the United States.” (§ 452, subd.(c).) This subdivision has frequently been held to encompass materials which describe legislative history; that is, documents describing the activity surrounding the Legislature’s adoption of statutes, even documents not prepared directly by the Legislature itself. (See, e.g., Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1172, fn. 5 [court “will generally grant requests to notice legislative history documents”]; In re S.B. (2004) 32 Cal.4th 1287, 1296,fn.3 [bill analysis by Assembly Committee on Judiciary]; Mooney v. County of Orange (2013) 212 Cal.App.4th 865, 872.) Exhibit A hereto is a compi- 1 All undesignated statutory references are to the Evidence Code. lation of documents which are part of the legislative history of the adoption of PC §1538.5(p), prepared by thelegislative-history service Legislative Research & Intent, LLC (hereafter “LRI”). It is judicially noticeable undersection 452, subdivision (c). In Post v. Prati (1979) 90 Cal.App.3d 626, the reviewing court held that the trial court had properly taken judicial notice pursuant to section 452, subdivision (c) of “two major legislative committee reports on geothermal re- sources, the ‘final [legislative] history’ of the act, excerpts from testimony given at public legislative hearings, and some correspon- dence directed to the Governor'soffice recommendinghis signature on Senate Bill No. 169 (the act) from the legislative analyst, a state agency, and an individuallegislator.” Exhibit A hereto relates to the issues in this case in a closely analogous way, and are therefore sub- ject to judicial notice under section 452, subdivision (c). (See Cal. Rules of Court, rule 8.252(a)(2)(C).) In addition, several other statutes provide that courts should consider legislative history in the interpretation of statutes. (Code Civ. Proc, § 1859 [intention of Legislatureto be pursued in construc- tion of a statute]; Govt. Code, § 9080, subd. (a) [legislative records relating to bills provide evidence of legislative intent].) “In enforc- ing the commandofa statute, both the policy expressed in its terms and the object implicit in its history and background should be rec- ognized.” (Shafer v. Registered Pharmacists Union (1940) 16 Cal.2d 379, 383.) “The guidingstar of statutory constructionis the intention of the Legislature. To the end that it be correctly ascertained the statute is to be read in thelightof its historical background andevi- dent objective.” (H.S. Mann Corp. v. Moody (1956) 144 Cal.App.2d 310, 320.) LRI’s web site states that “The courts routinely treat our research reports the same way they treat case authority for construing legislative intent (see CCP § 1859).” (-.) C. Appellant has complied with all applicable rules and prerequisites to judicial notice. Judicial notice of an item specified in section 452 is mandatory so long as the party requesting such judicial notice gives each ad- verse party sufficient notice of the request, and provides the court with sufficient information to enable it to take the requested judicial notice. (§ 453 [“courtshall take judicial notice”]; § 459, subd. (a) [re- viewing court shall take judicial notice of each matter which trial court was required to notice under § 453].) Appellant has complied with both requirements by submitting the actual documents of which notice is sought to both the adverse party and this Court as exhibits to this motion. Consequently, the instant request falls within the mandatory languageof section 453. The documents soughtto be noticed were not presented to the trial court. (See Cal. Rules of Court, rule 8.252(a)(2)(B).) The appeal under review by this Court was from final judgment of conviction following a courttrial, and the documents sought to be noticed re- late to matters preceding that trial; specifically, to the court's assignmentof appellant's re-filed suppression motion to a different judge than the one whograntedhis first motion. (PC § 1538.5(p); see Cal. Rules of Court, rule 8.252(a)(2)(D).) For the foregoing reasons, appellant respectfully requests this Court to grant this motion, and to take judicial notice of the two documents submitted herewith as Exhibits A and B. “Datedfune 2, Dole AZLPp Sebastopol, CA athan E. Berger ounsel for Appellant DECLARATION OF JONATHANE. BERGER I, Jonathan E. Berger, declare as follows: 1. I am an attorney duly licensed to practice before all courts in the State of California. I represent the appellant in the above-captioned matter. I could competently testify to the matters herein in a courtof law. 2. On March 29, 2015, I downloaded a document contain- ing the legislative history of Senate Bill 933, from the 1993 legislative session, from Legislative Research & Intent, LLC, using the website at the Internet address . A true and correct copy of that documentis attached hereto and labeled “Exhibit A.” 3. On May 19, 2015, I downloaded a documentcontaining the criminal local rules of the Santa Clara County Superior Court from the court's web site at Internet address . A true and correct copy of that documentis attached hereto and labeled “Exhibit B.” I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Dated: Tunc {0, ZO5Signature LP(2 Sebastopol, CA jonathan E. Berger EXHIBIT A LEGISLATIVE HISTORY CALIFORNIA STATUTESOF 1993 CHAPTER761 SB 933 ‘ ff; LEGISLATIVE RESEARCH & INTENT LLC 000001 Eee, “ LEGISLATIVE RESEARCH & INTENT LLC (iss 1107 9TH STREET, SUITE 220, SACRAMENTOCA 95814 WWW.LRIHISTORY.COM . INTENT@LRIHISTORY.COMLate Bill Versions SOURCE: OFFICIAL LEGISLATIVE ONLINE DATABASE 000002 BILL NUMBER:SB 933. INTRODUCED 03/04/93 BILL TEXT INTRODUCEDBY Senator Kopp MARCH4, 1993 An act to amendSection 1538.5 of the Penal Code,relating to search warrants. LEGISLATIVE COUNSEL'S DIGEST SB 933, as introduced, Kopp. Search warrants: motions to suppress evidence.. Underexisting law, if a defendant's motion to return property or suppress evidence is madeat a special hearing in the superior court and is granted, and if the people have additional evidencerelating to the motion and not presented at the special hearing, the people have the right to show good cause at the trial why the prior ruling at the special hearing should not be binding, or they may seek appellate review, as provided, unless the court, prior to the time the review is sought, has dismissed the case, as provided. This bill would additionally providethat if the case has been dismissed either by the court or by the people on their own motion, the people mayfile a new complaint or seek an indictment, and the ruling at the special hearing shall not be binding in any subsequent proceeding. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandatedlocal program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1538.5 of the Penal Code is amendedto read: 1538.5. (a) A defendant may moveforthe return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (1) The search or seizure without a warrant was unreasonable. (2) The search or seizure with a warrant was unreasonable because(i) the warrantis insufficient on its face; (ii) the property or evidence obtained is not that described in the warrant; (iii) there was not probable cause for the issuance of 000003 the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; (v) there was any other violation of federal or state constitutional standards. (b) When consistent with the procedures set forth in this section and subject to the provisions of Section 170 through 170.6 of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrant if there is a warrant. (c) Whenevera search or seizure motion is made in the municipal, justice, or superior court as providedin this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion. (d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movantat anytrial or other hearing unless further proceedings authorized by this section, Section 871.5, Section 1238, or Section 1466 are utilized by the people. (e) If a search or seizure motion is granted at trial, the property shall be returned upon orderof the court unlessit is otherwise subject to lawful detention. If the motion is granted at a special hearing, the property shall be returned upon order of the court only if, after the conclusion of any further - proceedings authorized by this section or Section 1238 or Section 1466, the property is not subject to lawful detention or if the time for initiating such proceedings has expired, whicheveroccurslast. If the motion is granted at a preliminary hearing, the property shall be returned upon order of court after 10 days unless the property is otherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section 871.5, or Section 1238 are utilized; if they are utilized, the property shall be returned only if, after the conclusion of such proceedings, the property is no longer subject to lawful detention. (f) If the property or evidencerelates to a felony offense initiated by a complaint, the motion shall be madein the superior court only uponfiling of an information, except that the defendant may makethe motionat the preliminary hearing in the municipalor justice court but the motion in the municipal or justice court shall be restricted to evidence sought to be introduced by the people at the preliminary hearing. (g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made in the municipalor justice court before trial and heard priorto trial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanorfiled together with a felony, the procedure provided for a felony in this section and Sections 1238 and 1539 shall be applicable. 000004 (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the courseoftrial in the municipal, justice, or superior court. (i) If the property or evidence obtainedrelates to a felony offense initiated by complaint and the defendant was held to answerat the preliminary hearing,or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion in the superior court at a special hearingrelating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after notice to the people unless the people are willing to waive a portion ofthis time. If the offense wasinitiated by indictmentor if the offense was initiated by complaint and no motion was madeatthe preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was madeat the preliminary hearing, unless otherwise agreed to byall parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing, except that the people mayrecall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The superior court shall base its ruling on all evidence presented at the special hearing and onthetranscript of the preliminary hearing, and the findings of the magistrate shall be binding on the superior court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendantpriorto trial shall be by meansof an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing. (j) If the property or evidencerelates to a felony offense initiated by complaint and the defendant's motion for the return of the property or suppression of the evidenceat the preliminary hearingis granted, and if the defendant is not held to answerat the preliminary hearing, the people mayfile a new complaint or seek an indictmentafter the preliminary hearing, andthe ruling at the prior hearing shall not be binding in any subsequent proceeding.In the alternative, the people may move to reinstate the complaint, or those parts of the complaint for which the defendant wasnot held to answer, pursuant to Section 871.5. If the property or evidencerelates to a felony offense 000005 initiated by complaint and the defendant's motion for the return or suppression of the property or evidenceat the preliminary hearing is granted, and if the defendant is held to answerat the preliminary hearing, the ruling at the preliminary hearing shall be binding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and uponthe filing of an information, the people within 15 days after the preliminary hearing request in the superior court a special hearing, in which case the validity of the search or seizure shall be relitigated de novo on the basis of the evidence presented at the special hearing, and the defendant shall be entitled, as a matter of right, to a continuance of the special hearing for a period of time up to 30 days.If defendant's motion is granted at a special hearing in the superior court, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good causeat the trial why {-such -} {+ the +} evidence wasnot presented at the special hearing and whythe prior ruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (0), unless the court prior to the time {- such -} {+ the +} review is sought has dismissed the case pursuant to Section 1385. {+ If the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on their own motion after the special hearings, the people mayfile a new complaint or seek an indictment after the special hearing, and the ruling at the special hearing shall not be binding in any subsequent proceeding. +} If the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the municipal court or justice court priortotrial, both the people and defendant shall have the right to appeal any decision of that court relating to that motion to the superior court of the county in which {- such -} {+ the +} inferior court is located, in accordance with the California Rules of Court provisions governing appeals from municipal and justice courts in criminal cases. If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanorcase,it shall be binding upon them. (k) If the defendant's motion to return property or suppress evidenceis granted and the case is dismissed pursuant to Section 1385, or the people appeal in a misdemeanorcase pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he or she is lawfully ordered by the court to be returned to custody. If the defendant's motion to return property or suppress evidenceis granted and the peoplefile a petition for writ of mandate or prohibition pursuant to subdivision (0) or a notice 000006 of intention to file such a petition, the defendant shall be released pursuant to Section 1318 unless (1) he or sheis charged with a capital offense in a case wherethe proofis evident and the presumption great, or (2) he or she is charged with a noncapital offense defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1 and the court orders that the defendant be discharged from actual custody uponbail. (1) If the defendant's motion to return property or suppress evidenceis granted, the trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of this state of the proceedings provided for in this section, Section 871.5, Section 1238, or Section 1466 and, except uponstipulation of the parties, pending the time for the initiation of {- such -} {+ these +} proceedings. Upon the termination of {- such -} {+ these +} proceedings, the defendant shall be broughtto trial as provided by Section 1382, and subject to the provisions of Section 1382, whenever the people have sought and been denied appellate review pursuant to subdivision (0), the defendant shall be entitled to have the action dismissed if he or she is not broughtto trial within 30 days of the date of the order which is the last denial of the petition. Nothing contained in this subdivision shall prohibit a court, at the same timeasit rules upon the search and seizure motion, from dismissing a case pursuant to Section 1385 when {- such -} {+ the +} dismissal is upon the court's own motion and is based upon an orderat the special hearing granting the defendant's motion to return property or suppress evidence. In a misdemeanorcase, the defendant shall be entitled to a continuance of up to 30 daysif he or she intends to file a motion to return property or suppress evidence and needs this time to prepare for the special hearing on the motion. In case of an appeal by the defendant in a misdemeanor case from the denial of {- such-} {+ the +} motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. (m) The proceedings provided for in this section, Section 871.5, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remediesprior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that{- such -} {+ the +} judgmentof conviction is predicated upon a plea of guilty. {- Such review -} {+ Review +} on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he or she has moved for the 000007 return of property or the suppression of the evidence. (n) Nothing contained in this section shall prohibit a person from making a motion, otherwise permitted by law, to return property, brought on the ground that the property obtained is protected by the free speech and press provisions of the Federal and State Constitutions. Nothing in this section shall be construedas altering (i) the law of standing to raise the issue of an unreasonable search or seizure; (11) the law relating to the status of the person conducting the search or seizure; (iii) the law relating to the burden of proof regarding the search or seizure; (iv) the law relating to the reasonablenessof a search or seizure regardless of any warrant which may have been utilized; or (v) the procedure and law relating to a motion made pursuant to Section 871.5 or 995 or the procedures which may be initiated after the granting or denial of such a motion. (o) Within 30 days after a defendant's motion is granted at a special hearing in the superior court, the people mayfile a petition for writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure motion. If the trial of a criminal case is set fora date whichis less than 30 days from the granting of a defendant's motion at a special hearing in the superior court, the people, if they have not filed such a petition and wish to preserve their right to file {- such -} a petition, shall file in the superior court on or before the trial date or within 10 days after the special hearing, whichever occurslast, a notice of intention tofile {- such -} a petition and shall serve a copy of the notice upon the defendant. 000008 BILL NUMBER:SB 933, AMENDED 05/20/93 BILL TEXT AMENDED IN SENATE MAY20, 1993 INTRODUCED BY Senator Kopp MARCH4,1993 Anact to amend Section 1538.5 of the Penal Code,relating to search warrants. LEGISLATIVE COUNSEL'S DIGEST SB 933, as amended, Kopp. Search warrants: motions to suppress evidence. {- .-} Underexisting law, if a defendant's motion to return property or suppress evidence is madeat a special hearing in the superior court and is granted, and if the people have additional evidence relating to the motion and not presented at the special hearing, the people have the right to show good causeat the trial why the prior ruling at the special hearing should not be binding, or they may seek appellate review, as provided, unless the court, prior to the time the review is sought, has dismissed the case, as provided. This bill would additionally provide that if the case has been dismissed either by the court or by the people on their own motion, the people may file a new complaint or seek an indictment, and the ruling at the special hearing shall not be binding in any subsequent proceeding. {+ However,it also would providethat if a defendant's motion to return property or suppress evidence in a felony matter has been granted twice, the people may notfile a new complaint or seek an indictmentin orderto relitigate the motion orrelitigate the matter de novo at a special hearing in the superior court, unless the people discover additional evidencerelating to the motion that was not reasonably discoverable at the time of the 2nd suppression hearing. +} Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION1. {+ It is the intent of the Legislature, in amending Section 1538.5 of the Penal Code,that this act shall not be construed or used by a party as a means to forum shop. 000009 SEC. 2. +} Section 1538.5 of the Penal Code 1s amended to read: 1538.5. (a) A defendant may movefor the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (1) The search or seizure without a warrant was unreasonable. (2) The search or seizure with a warrant was unreasonable because(i) the warrantts insufficient on its face; (11) the property or evidenceobtained is not that described in the warrant; (iii) there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; (v) there wasany other violation of federal or state constitutional standards. (b) When consistent with the procedures set forth in this section and subject to the provisions of Section 170 through 170.6 of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrant if there is a warrant. (c) Whenevera search or seizure motion is made in the municipal, justice, or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion. (d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movantat anytrial or other hearing unless further proceedings authorized by this section, Section 871.5, {- Section -} 1238, or {- Section -} 1466 are utilized by the people. (e) If a search or seizure motion is grantedat trial, the property shall be returned upon order of the court unlessitis otherwise subject to lawful detention. If the motion is granted at a special hearing, the property shall be returnedupon order of the court only if, after the conclusion of any further proceedings authorized by this section {- or -} {+ , +} Section 1238 or {- Section -} 1466, the property is not subject to lawful detention or if the time for initiating {- such -} {+ the +} proceedings has expired, whichever occurslast. If the motion is granted at a preliminary hearing, the property shall be returned upon order of court after 10 days unless the property is otherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section 871.5 {- ,-} or {- Section -} 1238 are utilized; if they are utilized, the property shall be returned only if, after the conclusion of {- such -} {+ the +} proceedings, the property is no longer subject to lawful detention. — (f) If the property or evidencerelates to a felony offense 000010 initiated by a complaint, the motion shall be madein the superior court only uponfiling of an information, except that the defendant may make the motion at the preliminary hearing in the municipal or justice court {+ , +} but the motion in the municipalor justice court shall be restricted to evidence sought to be introduced by the people at the preliminary hearing. (g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made in the municipal orjustice court beforetrial and heard prior totrial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanorfiled together with a felony, the procedure provided for a felony in this section and Sections 1238 and 1539 shall be applicable. (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the groundsfor the motion, the defendant shall have the right to make this motion during the courseoftrial in the municipal, justice, or superior court. (i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant washeld to answerat the preliminary hearing, orifthe property or evidencerelates to a felony offense initiated by indictment, the defendantshall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after notice to the people {+ , +} unless the people are willing to waive a portion of this time. If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was madeat the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was madeat the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence {- which -} {+ that +} could not reasonably have been presented at the preliminary hearing, except that the people may ~ recall witnesses whotestified at the preliminary hearing. If the people object to the presentation of evidenceat the special hearing on the groundsthat the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determinethat issue. The superior court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the superior court as to evidence or property not affected by evidence presented at the special hearing. After the special hearingis held in the superior court, any review thereafter desired by the defendantpriorto trial shall be by 000011 means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing. (j) If the property or evidencerelates to a felony offense initiated by complaint and the defendant's motion for the return of the property or suppression of the evidenceat the preliminary hearing is granted, and if the defendant is not held to answerat the preliminary hearing, the people may file a new complaint or seek an indictment after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding {+ , except as limited by subdivision (p) +} . In the alternative, the people may moveto reinstate the complaint, or those parts of the complaint for which the defendant wasnotheld to answer, pursuant to Section 871.5. If the property or evidencerelates to a felony offense initiated by complaint and the defendant's motion for the return or suppression of the property or evidenceat the preliminary hearing is granted, and if the defendantis held to answerat the preliminary hearing, the ruling at the preliminary hearing shall be binding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and uponthefiling of an information, the people {+ , +} within 15 days after the preliminary hearing {+ , +} request in the superior court a special hearing, in which casethe validity of the search or seizure shall be relitigated de novo on the basis of the evidence presented at the special hearing, and the defendant shall be entitled, as a matter of right, to a continuance of the special hearing for a period of time up to 30 days. {+ The people may not requestrelitigation of the motion at a special hearing if the defendant's motion has been granted twice. +} If defendant's motion is granted at a special hearing in the superior court, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good cause at the trial why the evidence wasnot presented at the special hearing and whythe prior ruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (0), unless the court {+ , +} prior to the time the review is sought {+ , +} has dismissed the case pursuant to Section 1385. If the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on their own motion after the special {- hearings -} {+ hearing +} , the people mayfile a new complaint or seek an indictment after the special hearing, and the ruling at the special hearing shall not be binding in any subsequent proceeding {+ , except. as limited by subdivision (p) +} . If the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the municipal court or justice court prior to trial, both the people and defendant shall have the 000012 right to appeal any decision of that court relating to that motion to the superior court of the county in which the inferior court is located, in accordance with the California Rules of Court provisions governing appeals from municipal and justice courts in criminal cases. If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanorcase,it shall be binding upon them. (k) If the defendant's motion to return property or suppress evidence is granted and the case is dismissed pursuant to Section 1385, or the people appeal in a misdemeanor case pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he or she is lawfully ordered by the court to be returned to custody. If the defendant's motion to return property or suppress evidence is granted and the people file a petition for writ of mandate or prohibition pursuant to subdivision (0) or a notice of intention to file such a petition, the defendant shall be released pursuant to Section 1318 {+ , +} unless (1) he or she .is charged with a capital offense in a case wherethe proofis evident and the presumptiongreat, or (2) he or she is charged with a noncapital offense defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1 {+ , +} and the court orders that the defendant be discharged from actual custody uponbail. (1) If the defendant's motion to return property or suppress evidenceis granted, the trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of this state of the proceedings provided for in this section, Section 871.5, {- Section -} 1238, or {- Section -} 1466 and, except uponstipulation of the parties, pending the time for the initiation of these proceedings. Upon the termination of these proceedings, the defendant shall be broughtto trial as provided by Section 1382, and {+ , +} subject to the provisions of Section 1382, whenever the people have sought and been denied appellate review pursuant to subdivision (0), the defendant shall be entitled to have the action dismissed if he or she is not broughtto trial within 30 days of the date of the order {- which -} {+ that +} is the last denial of the petition. Nothing contained in this subdivision shall prohibit a court, at the same time asit rules upon the search and seizure motion, from dismissing a case pursuant to Section 1385 when the dismissal is upon the court's own motion and is based upon an orderat the special hearing granting the defendant's motion to return property or suppress evidence. In a misdemeanorcase, the defendant shall be entitled to a continuance of up to 30 days if he or she intendsto file a motion to return property or suppress evidence and needsthis time to prepare for the special hearing on the motion. In case 000013 of an appeal by the defendant in a misdemeanorcase from the denial of the motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. (m) The proceedings providedfor in this section, {- Section -} {+ and Sections +} 871.5, {- Section -} 995, {- Section -} 1238, and {- Section -} 1466 shall constitute the sole and exclusive remediesprior to conviction to test the unreasonablenessof a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review ofthe validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal maybe obtained by the defendant {- providing -} {+ provided +} that at some stage of the proceedings prior to conviction he or she has movedfor the return of property or the suppression of the evidence. (n) Nothing contained in this section shall prohibit a person from making a motion, otherwise permitted by law, to return property, brought on the ground that the property obtained is protected by the free speech and press provisions of the Federal and State Constitutions. Nothing in this section shall be construed asaltering (i) the law of standing to raise the issue of an unreasonable search orseizure; (ii) the law relating to the status of the person conducting the search or seizure;(iii) the law relating to the burden of proof regarding the search or seizure; (iv) the law relating to the reasonableness of a search or seizure regardless of any warrant {- which -} {+ that +} may have been utilized; or (v) the procedure and law relating to a motion made pursuant to Section 871.5 or 995 {+ , +} or the procedures {- which -} {+ that +} maybe initiated after the granting or denial of such a motion. (0) Within 30 days after a defendant's motion is granted at a special hearing in the superior court, the people mayfile a petition for writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure motion. If the trial of a criminal case is set for a date {- which -} {+ that +} is less than 30 days from the granting of a defendant's motion at a special hearing in the superior court, the people, if they have notfiled such a petition and wish to preserve their right to file a petition, shall file in the superior court on or before the trial date or within 10 days after the special hearing, whichever occurslast, a notice of intention to file a petition and shall serve a copy of the notice upon the defendant. {+ (p) If a defendant's motion to return property or suppress 000014 evidence in a felony matter has been granted twice, the people maynot file a new complaint or seek an indictment in order to relitigate the motionorrelitigate the matter de novo at a special hearing in the superior court as otherwise provided by subdivision (j), unless the people discover additional evidence relating to the motion that was not reasonably discoverable at the time of the second suppression hearing. +} 000015 BILL NUMBER:SB 933 AMENDED08/16/93 BILL TEXT AMENDEDIN ASSEMBLY AUGUST16, 1993 AMENDEDIN SENATE MAY20, 1993 INTRODUCEDBY Senator Kopp MARCH4,1993 An act to amendSection 1538.5 of the Penal Code, relating to search warrants. LEGISLATIVE COUNSEL'S DIGEST SB 933, as amended, Kopp. Search warrants: motions to suppress evidence. Underexisting law, if a defendant's motion to return property or suppress evidence is madeat a special hearing in the superior court and is granted, and if the people have additional evidencerelating to the motion and not presented at the special hearing, the people have the right to show good causeat the trial why the prior ruling at the special hearing should not be binding, or they may seek appellate review, as provided, unless the court, prior to the time the review is sought, has dismissed the case, as provided. This bill would additionally provide that if the case has been dismissed either by the court or by the people on their own motion, the people may file a new complaint or seek an indictment, and the ruling at the special hearing shall not be binding in any subsequent proceeding. However,it also would provide that if a defendant's motion to return property or suppress evidence in a felony matter has been granted twice, the people maynotfile a new complaint or seek an indictment in orderto relitigate the motion or relitigate the matter de novo at a special hearing in the superior court, unless the people discover additional evidence relating to the motion that wasnot reasonably discoverable at the time of the 2nd suppression hearing. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. It is the intent of the Legislature, in amending Section 1538.5 of the Penal Code,that this act shall not be 000016 construed or used by a party as a means to forum shop. SEC.2. Section 1538.5 of the Penal Code is amendedto read: 1538.5. (a) A defendant may movefor the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (1) The search or seizure without a warrant was unreasonable. (2) The search or seizure with a warrant was unreasonable because (i) the warrantis insufficient on its face; (ii) the property or evidence obtained is not that described in the warrant; (iii) there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; (v)there was any other violation of federal or state constitutional standards. (b) When consistent with the proceduresset forth in this section and subject to the provisions of Section 170 through 170.6 of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrant if there is a warrant. (c) Whenevera searchor seizure motion is made in the municipal, justice, or superior court as providedin this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion. (d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movantat any trial or other hearing unless further proceedings authorized bythis section, Section 871.5, 1238, or 1466are utilized by the people. (e) Ifa search or seizure motion is grantedat trial, the property shall be returned upon order of the court unlessit is otherwise subject to lawful detention. If the motion is granted at a special hearing, the property shall be returned upon order of the court only if, after the conclusion of any further proceedings authorized by this section , Section 1238 or 1466, the property is not subject to lawful detention or if the time for initiating the proceedings has expired, whichever occurs last. If the motion is granted at a preliminary hearing, the property shall be returned uponorder of court after 10 days unless the property is otherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section 871.5 or 1238are utilized; if they are utilized, the property shall be returned onlyif, after the conclusion of the proceedings, the property is no longer subject to lawful detention. (f) If the property or evidence relates to a felony offense initiated by a complaint, the motion shall be made in the superior court only uponfiling of an information, exceptthat 000017 the defendant may make the motionat the preliminary hearing in the municipal or justice court, but the motion in the municipal or justice court shall be restricted to evidence sought to be introduced by the people at the preliminary hearing. (g) If the property or evidencerelates to a misdemeanor complaint, the motion shall be made in the municipalorjustice court before trial and heard priorto trial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanorfiled together with a felony, the procedure provided for a felony in this section and Sections 1238 and 1539 shall be applicable. (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the courseoftrial in the municipal, justice, or superior court. (i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answerat the preliminary hearing,or if the property or evidencerelates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after notice to the people, unless the people are willing to waive a portion ofthis time. If the offense wasinitiated by indictmentor if the offense was initiated by complaint and no motion was madeatthe preliminary hearing, the defendant shall have theright to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was madeat the preliminary hearing, unless otherwise agreed to byall parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearimg on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The superior court shall base its ruling on all evidence presented at the special hearing and onthe transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the superior court as to evidence or property not affected by - evidence presented at the special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendantprior to trial shall be by meansof an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing. 000018 (j) If the property or evidencerelates to a felony offense Initiated by complaint and the defendant's motion for the return of the property or suppression of the evidenceat the preliminary hearingis granted, and if the defendant is not held to answerat the preliminary hearing, the people may file a new complaint or seek an indictment after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). In the alternative, the people may moveto reinstate the complaint, or those parts of the complaint for which the defendant wasnot held to answer, pursuant to Section 871.5. If the property or evidencerelates to a felony offense initiated by complaint and the defendant's motion for the return or suppression of the property or evidenceat the preliminary hearing is granted, and if the defendant is held to answerat the preliminary hearing, the ruling at the preliminary hearing shall be binding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and uponthefiling of an information, the people, within 15 days after the preliminary hearing, request in the superior court a special hearing, in which case the validity of the search or seizure shall be relitigated de novo onthe basis of the evidence presented at the special hearing, and the defendant shall be entitled, as a matter ofright, to a continuance of the special hearing for a period of time up to 30 days. The people may not requestrelitigation of the motion at a special hearing if the defendant's motion has been granted twice. If defendant's motion is granted at a special hearing in the superior court, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good causeat thetrial why the evidence wasnot presented at the special hearing and why the prior ruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (0), unless the court, prior to the time the review is sought, has dismissed the case pursuant to Section 1385. If the case has been dismissed pursuant to Section 1385,or if the people dismiss the case on their own motion after the special hearing, the people mayfile a new complaint or seek an indictmentafter the special hearing, and the ruling at the special hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). If the property or evidenceseizedrelates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the municipal court or justice court prior to trial, both the people and defendantshall have the right to appeal any decision of that court relating to that motion to the superior court of the county in which the inferior court is located, in accordance with the California Rules of Court provisions governing appeals from municipal and justice courts in criminal 000019 cases. If the people prosecute review by appealor writ to decision, or any review thereof, in a felony or misdemeanor case,it shall be binding upon them. (k) If the defendant's motion to return property or suppress evidence is granted and the case is dismissed pursuant to Section 1385, or the people appeal in a misdemeanorcase pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he or she is lawfully ordered by the court to be returned to custody. If the defendant's motion to return property or suppress evidence is granted and the people file a petition for writ of mandate or prohibition pursuant to subdivision (0) or a notice of intention to file such a petition, the defendant shall be released pursuant to Section 1318, unless (1) he or she is charged with a capital offense in a case where the proofis evident and the presumption great, or (2) he or she is charged with a noncapital offense defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1, and the court orders that the . defendant be discharged from actual custody uponbail. (1) If the defendant's motion to return property or suppress evidence is granted, the trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of this state of the proceedings provided for in this section, Section 871.5, 1238, or 1466 and, except upon stipulation of the parties, pending the time for the initiation of these proceedings. Upon the termination of these proceedings, the defendant shall be broughtto trial as provided by Section 1382, and, subject to the provisions of Section 1382, whenever the people have sought and been denied appellate . review pursuant to subdivision (0), the defendant shall be entitled to have the action dismissed if he or she is not broughtto trial within 30 days of the date of the order that is the last denial of the petition. Nothing containedin this subdivision shall prohibit a court, at the same timeasit rules upon the search and seizure motion, from dismissing acase pursuant to Section 1385 when the dismissal 1s upon the court's own motion and is based upon an order at the special hearing granting the defendant's motion to return property or suppress evidence. In a misdemeanorcase, the defendant shall be entitled to a continuance of up to 30 daysifhe or she intends to file a motion to return property or suppress evidence and needsthis time to prepare for the special hearing on the motion. In case of an appeal by the defendant in a misdemeanor case from the denial of the motion, he or she-shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. (m) The proceedings provided for in this section, and 000020 Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence. (n) Nothing containedin this section shall prohibit a person from making a motion, otherwise permitted by law, to return property, brought on the ground that the property obtained is protected by the free speech and pressprovisions of the Federal and State Constitutions. Nothing in this section shall be construed as altering (i) the law of standingto raise the issue of an unreasonable search or seizure; (ii) the law relating to the status of the person conducting the search or seizure;(iii) the law relating to the burden of proof regarding the search or seizure; (iv) the law relating to the reasonableness of a search or seizure regardless of any warrant that may have been utilized; or (v) the procedure and law relating to a motion made pursuant to Section 871.5 or 995, or the procedures that may be initiated after the granting or denial of such a motion. (0) Within 30 days after a defendant's motionis granted at a special hearing in the superior court, the people mayfile a petition for writ of mandate or prohibition, seeking appellate review ofthe ruling regarding the search or seizure motion. If the trial of a criminal case is set for a date thatis less than 30 days from the granting of a defendant's motion at a special hearing in the superior court, the people, if they have notfiled such a petition and wish to preservetheir right to file a petition, shall file in the superior court on or before the trial date or within 10 days after the special hearing, whicheveroccurs last, a notice of intention to file a petition and shall serve a copy of the notice upon the defendant. (p) If a defendant's motion to return property or suppress evidence in a felony matter has been grantedtwice, the people maynotfile a new complaint or seek an indictmentin order to relitigate the motion orrelitigate the matter de novo at a special hearing in the superior court as otherwise provided by subdivision(j), unless the people discover additional evidence relating to the motion that was not reasonably discoverable at the time of the second suppression hearing. {+ Relitigation of the motion shall be heard by the same judge who grantedthe motion atthe first hearing if the judge is available. +} 000021 LEGISLATIVE RESEARCH & INTENT LLC 1107 9TH STREET, SUITE 220, SACRAMENTO CA 95814 WWW.LRIHISTORY.COM . INTENT@LRIHISTORY.COM is J n . California Session Laws SOURCE: CALIFORNIA ASSEMBLY OFFICE OF THE CHIEF CLERK ONLINE DATABASE 000022 Volume 3 STATUTES OF CALIFORNIA AND DIGESTS OF MEASURES 1993 Constitution of 1879 as Amended Measures Submitted to Vote of Electors, Special Statewide Election, November 2, 1993 General Laws, Amendments to the Codes, Resolutions, and Constitutional Amendments passed by the California Legislature 1993-94 Regular Session Compiled by BION M. GREGORY Legislative Counsel 000023 — _— - so a see mimeeee 4248 STATUTES OF 1993 [Ch. 761 only costs which maybeincurredbya local agencyor schooldistrict will be incurred because this act creates a new crimeorinfraction, changes the definition of a crimeor infraction, changes the penalty for a crime orinfraction, or eliminates a crime or infraction. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisionsof this act shall become operative on the same datethat the act takes effect pursuant to the California Constitution. CHAPTER 761 An act to amend Section 1538.5 of the Penal Code, relating to search warrants. [Approved by Governor October 2, 1993. Filed with Secretary of State October4, 1993.] The people of the State of California do enactas follows: SECTION 1. It is theintent of the Legislature, in amending Section 1538.5 of the Penal Code,that this act shall not be construed or used by a party as a means to forum shop. SEC. 2. Section 1538.5 of the Penal Code is amended to read: 1538.5. (a) A defendant may movefor the return of property or to suppress as evidence anytangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (1) The search or seizure without a warrant was unreasonable. (2) The search or seizure with a warrant was unreasonable because (i) the warrantis insufficient on its face; (ii) the property or evidence obtainedis not that described in the warrant; (iii) there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; (v) there wasanyotherviolation of federal or state constitutional standards. (b) When consistent with the proceduresset forth in this section and subject to the provisions of Section 170 through 170.6 of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrantif there is a warrant. (c) Whenever a search or seizure motion is made in the municipal, justice, or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion. (d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, 1238, or 1466 are utilized by the people. (e) Ifa search or seizure motionis grantedat a trial, the property 132630 -_= -_ = 2 « ane mRme ene mn 000024 Ch. 761 ] STATUTES OF 1993 4249 shall be returned upon order of the court unless it is otherwise subject to lawful detention. If the motion is granted at a special hearing, the property shall be returned uponorderof the court only if, after the conclusion of any further proceedings authorized by this section, Section 1238 or 1466, the property is not subject to lawful detention or if the time for initiating the proceedings has expired, whichever occurs last. If the motion is granted at a preliminary hearing, the property shall be returned uponorderof court after 10 days unless the property is otherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section 871.5 or 1238 are utilized; if they are utilized, the property shall be returned only if, after the conclusion of the proceedings, the property is no longer subject to lawful detention. (f) If the property or evidencerelates to a felony offense initiated by a complaint, the motion shall be madein the superior court only upon filing of an information, except that the defendant may make the motion at the preliminary hearing in the municipal or justice court, but the motion in the municipal or justice court shall be restricted to evidence sought to be introduced by the people at the preliminary hearing. (g) If the property or evidence relates to a misdemeanor complaint, the motion shall be madein the municipal or justice court beforetrial and heardpriorto trial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanor filed together with a felony, the procedure providedfor a felony in this section and Sections 1238 and 1539 shall be applicable. (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the groundsfor the motion, the defendant shall have the right to make this motion during the course oftrial in the municipal, justice, or superior court. (i) If the property or evidence obtainedrelates to a felony offense initiated by complaint and the defendant was held to answerat the preliminaryhearing, or if the property or evidencerelatesto a felony offense initiated by indictment, the defendant shall havetheright to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior totrial and at least 10 days after notice to the people, unless the people are willing to waive a portion ofthis time. If the offense was initiated by indictmentor if the offense was initiated by complaint and no motion was madeat the preliminary hearing, the defendant shall have the rightto fully litigate the validity of a search or seizure on the basis of the evidence presented at aspecial hearing. If the motion was madeat the preliminary hearing, unless otherwise agreed to byall parties, evidence presented at the special hearing shall be limited to thetranscript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people mayrecall witnesses 132650 -_ -_— ~ ee 2. ee me sR Ameeee ee 000025 4250 STATUTES OF1993 [Ch. 761 whotestified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendantshall be entitled to an in camera hearing to determine that issue. The superior court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding onthe superior court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendantprior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing. (j) If the property or evidencerelates to a felony offense initiated by complaint and the defendant’s motion for the return of the property or suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people mayfile a new complaintor seek an indictmentafter the preliminary hearing, and theruling at the prior hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). In the alternative, the people may moveto reinstate the complaint, or those parts of the complaint for which the defendant was not held to answer, pursuant to Section 871.5. If the property or evidencerelates to a felony offense initiated by complaint and the defendant’s motion for the return or suppression of the property or evidenceat the preliminary hearing is granted, and if the defendantis held to answerat the preliminary hearing, the ruling at the preliminary hearing shall bebinding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and uponthefiling of an information, the people, within 15 days after the preliminary hearing, requestin the superior court a special hearing, in which case the validity of the search or seizure shall be relitigated de novo on the basis of the evidence presented at the special hearing, and the defendantshall be entitled, as a matter of right, to a continuance of the special hearing for a period of time up to 30 days. The people may ~ not request relitigation of the motion at a special hearing if the defendant’s motion has been granted twice. If defendant’s motionis grantedat a special hearing in the superior court, the people,if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show goodcauseat the trial why the evidence was not presented at the special hearing and whythe prior ruling at the special hearing should not be binding,or the people may seek appellate review as provided in subdivision (0), unless the court, prior to the time.the review is sought, has dismissed the case pursuant toSection 1385. If the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on their own motion after. the special hearing, the peoplemay file a new complaint or seekan indictment after the special hearing, and the 132680 _ = -~m em eeee Peaee 000026 Ch. 761 ] STATUTES OF 1993 4251 ruling at the special hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). If the property or evidenceseizedrelates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the municipal court or justice court prior to trial, both the people and defendantshall have theright to appeal any decision of that court relating to that motion to the superior court of the county in which the inferior court is located, in accordancewith the California Rules of Court provisions governing appeals from municipal and justice courts in criminal cases. If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanorcase,it shall be binding upon them. (k) If the defendant’s motion to return property or suppress evidence is granted and thecase is dismissed pursuant to Section 1385, or the people appeal in a misdemeanor case pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he orsheis lawfully ordered by the court to be returned to custody. If the defendant’s motion to return property or suppress evidence is granted and the people file a petition for writ of mandate or prohibition pursuant to subdivision (o) or a notice ofintentionto file such a petition, the defendant shall be released pursuant to Section 1318, unless (1) he or she is charged with a capital offense in a case wherethe proofis evident and the presumption great, or (2) he or she is charged with a noncapital offense defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1, and the court orders that the defendant be discharged from actual custody upon bail. (1) If the defendant’s motion to return property or suppress evidence is granted, the trial of a criminal case shall bestayed to a specified date pending the termination in the appellate courts ofthis state of the proceedings provided for in this section, Section 871.5, 1238, or 1466 and, except uponstipulation of the parties, pending the timefor theinitiation of these proceedings. Upon the termination of these proceedings, the defendant shall be brought to trial as provided by Section 1382, and, subject to the provisions of Section 1382, whenever the people have sought and been denied appellate review pursuant to subdivision (0), the defendantshall be entitled to havethe action dismissedifhe or she is not broughtto trial within 30 days of the date of the order that is the last denial of the petition. Nothing contained in this subdivision shall prohibit a court, at the same time as it rules upon the search and seizure motion, from dismissing a case pursuant to Section 1385 whenthe dismissal is upon the court’s ownmotion and is based upon an order at the special hearing granting the defendant’s motion to return propertyor suppress evidence. In a misdemeanorcase, the defendant shall be entitled to a continuance of up to 30 daysif he or she intendstofile 132700 _ _— -— 8 « ee mmaeee 000027 4252 STATUTES OF 1993 [ Ch. 761 a motion toreturn propertyor suppress evidenceand needsthis time to preparefor the special hearing on the motion.In case of an appeal by the defendant in a misdemeanorcase from the denial of the motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. (m) The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remediesprior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of -property or the suppression of evidence is a defendantin a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at somestage of the proceedings prior to conviction he or she has movedfor the return of property or the suppression of the evidence. (n) Nothing containedin this section shall prohibit a person from making a motion, otherwise permitted by law, to return property, brought. on the groundthat the property obtainedis protected by the free speech and press provisions of the Federal and State Constitutions. Nothing in this section shall be construed as altering (i) the law of standing to raise the issue of an unreasonable search or seizure;(ii) the law relatingto the status of the person conducting the search or seizure; (iii) the law relating to the burden of proof regarding the search or seizure; (iv) the law relating to the reasonableness of a search or seizure regardless of any warrant that may have beenutilized; or (v) the procedureandlawrelating to a motion madepursuantto Section 871.5 or 995, or the proceduresthat may be initiated after the granting or denial of such a motion. (o) Within 30 days after a defendant’s. motion is granted at a special hearing in the superior court, the people mayfile a petition for writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure. motion. If the trial of a criminal case is set for a date that is less than 30 days from. the granting of a defendant’s motion at a special hearing in the superior court, the people, if they have notfiled such a petition and wish to preservetheir right to file a petition, shall file’in the superior court on or before thetrial date or within 10 days after the special hearing, whicheveroccurslast, a notice of intentionto file a petition and shall serve a copy of the notice upon the defendant. (p) If a defendant’s motion to return property or suppress evidencein a felony matter has been granted twice, the people may notfile a new complaint or seek an indictmentin orderto relitigate _the motionorrelitigate the matter de novo at a special hearing inthe superior court as otherwise provided by subdivision (j), unless the people discover additional evidence relating to the motion that was 132730 -_ oe =m a PreeeeeeaPw 000028 Ch. 762] STATUTES OF 1993 4253 not reasonably discoverable at the time of the second suppression hearing. Relitigation of the motion shall be heard by the same judge who granted the motion atthefirst hearing if the judgeis available. CHAPTER 762 An act to amend Sections 25110, 25540, and 25541 of the Corporations Code, relating to corporations. [Approved by Governor October2, 1993. Filed with Secretary of State October 4, 1993.} The people of the State of California do enactas follows: SECTION 1. Section 25110 of the Corporations Code is amended to read: 25110. It is unlawful for any personto offerorsell in this state any security in an issuer transaction (other than in a transaction subject to Section 25120), whether or not by or through underwriters, unless such sale has been qualified under Section 25111, 25112 or 25113 (and no order underSection 25140 or subdivision (a) of Section 25143 is in effect with respect to such qualification) or unless such security or transaction is exempted under Chapter 1 (commencing with Section 25100) of this part. The offer or sale of such a security in a manner that varies or differs from, exceeds the scopeof, or fails to conform with either a material term or material condition of _ qualification of the offering as set forth in the permitor qualification order, or a material representation as to the mannerof offering which is set forth in the application for qualification, shall be an unqualified offer or sale. SEC. 2. Section 25540 of the Corporations Code is amended to read: 25540. (a) Except as provided for in subdivision (b), any person who willfully violates any provision of this law, or who willfully violates any rule or order underthis law, shall upon conviction be fined not more than one million dollars ($1,000,000), or imprisoned. in the state prison,or in a county jail for not more than one year,or be punished by both such fine and imprisonment; but no person may be imprisonedfortheviolation ofany rule or orderifhe or she proves that he or she had no knowledgeof the rule or order. . (b) Any person who willfully violates Section 25400, 25401, or 25402 shall upon conviction be fined not more than ten million dollars ($10,000,000) , or imprisonedin thestate prison for two, three, or five years, or be punished by both such fine and imprisonment. SEC.2.5. Section 25540 of the Corporations Code is amended to read: | 25540. (a) Except as providedfor in subdivision (b), any person whowillfully violates any provision of this law, or who willfully 132790 -_ e-m = « eeae 000029 LEGISLATIVE RESEARCH & INTENT LLC 1107 9TH STREET, SUITE 220, SACRAMENTO CA 95814 WWW.LRIHISTORY.COM . INTENT@LRIHISTORY.COM Final History SOURCE: OFFICIAL LEGISLATIVE ONLINE DATABASE 000030 COMPLETEBILL HISTORY BILL NUMBER: S.B. No. 933 AUTHOR: Kopp TOPIC : Search warrants: motions to suppress evidence. BILL HISTORY 1993 Oct. 4 Chaptered by Secretary of State. Chapter 761, Statutes of 1993. Oct. 2 Approved by Governor. Sept. 9 Enrolled. To Governor at 10 a.m. Sept. 1 Senate concurs in Assembly amendments. (Ayes 27. Noes 1. Page 2991.) To enrollment. Aug. 26 In Senate. To unfinished business. Aug. 26 Read third time. Passed. (Ayes 74. Noes 0. Page 3591.) To Senate. Aug. 17 Read second time. To third reading. Aug. 16 Withdrawn from committee. Ordered placed on second reading. Aug. 16 From committee: Do pass as amended,butfirst amend, and re-refer to Com. on W. & M. (Ayes 7. Noes 0.) Read second time. Amended. Re-referred to Com. on W. & M. June 7 To Com. on PUB.S. May 28 In Assembly. Readfirst time. Held at Desk. May 28 Readthird time. Passed. (Ayes 33. Noes 1. Page 1400.) To Assembly. May 20 Read second time. Amended. Tothird reading. May 19 From committee: Do pass as amended. (Ayes 10. Noes 1. Page 1092.) Mar. 29 Set for hearing May 11. Mar. 18 To Com. on JUD. Mar. 7 From print. May be acted upon on or after April 6. Mar. 4 Introduced. Readfirst time. To Com. on RLS.for assignment. To print. 000031 LEGISLATIVE RESEARCH & INTENT LLC j 1107 9TH STREET, SUITE 220, SACRAMENTO CA 95814 ; . : WWW.LRIHISTORY.COM . INTENT@LRIHISTORY.COM Online Materials SOURCE: OFFICIAL LEGISLATIVE ONLINE DATABASE 000032 BILL ANALYSIS SENATE COMMITTEE ON JUDICIARY Bill Lockyer, Chairman 1993-94 Regular Session SB 933 (Kopp) As introduced Hearing date: May 11, 1993 Penal Code LGK MOTIONS TO SUPPRESS EVIDENCE HISTORY Source: Los Angeles District Attorney Prior Legislation: AB 2328 (1986) - Chaptered Support: No known Opposition: California Attorneys for Criminal Justice KEY ISSUES SHOULD THE PROSECUTIONBE ENTITLED TO FILE A NEW COMPLAINT OR SEEK SAN INDICTMENT AFTER THE DEFENDANT'S MOTION TO RETURN PROPERTY OR SSUPPRESS EVIDENCE IS GRANTED AT A SPECIAL HEARING OF THE SUPERIOR SCOURT? IN SUCH A CASE, SHOULD THE RULING AT THE SPECIAL HEARING NOTBE SBINDING IN A SUBSEQUENT PROCEEDING? PURPOSE Existing law permits a motion to suppress evidenceat a special Shearing in superior court. If the motion is granted, andif the Sprosecution has additional evidencerelating to the motion and not Spresented at the special hearing, the prosecution may show good 000033 Scauseat the trial why the ruling at the special hearing should not 8be binding. Alternatively, the prosecution may seek appellate Sreview as long as the case has not already been dismissed. (More) SB 933 (Kopp) Page 2 This bill would additionally authorize the prosecution to file a Snew complaintif the case is dismissed by the judgeorif the Sprosecution dismissed the case on its own motion after the special Shearing. In that situation, the ruling at the special hearing Swould not be binding in the new action. The purposeofthis bill is to allow the prosecution another chance Safter losing a motion to suppress evidence at a special hearing in Ssuperior court when good cause or the basis for appellate review Sdoes not exist. COMMENT 1. Expressed purpose of the bill According to the sponsor, the purposeofthis bill is to provide the prosecution with the additional remedyofrefiling a case after the case is dismissed because the defendant was granted a suppression motion at a special hearing of the superior court. According to the sponsor, a recent Supreme Court case, Schlick v. Superior Court (December 17, 1992) 4 Cal.4th 310, interpreting Penal Code Section 1538.5, held that the prosecution cannot simply dismiss the case andrefile it and start all over again but must instead pursuethe relitigation or appellate procedures set forth in 1538.5 - even if the case had not previously been dismissed and refiled. The Court cited as the basis of this holding the language of PC 1538.5 itself. 000034 The problem with this decision is that we can now suffer the permanent dismissal of a felony case simply because we did a poorjob in presenting our evidenceat the 1538.5 motion in the superior court. 1538.5, subd. (j) does permit us to seek to renew a 1538.5 motion first made at the special hearing in the superior court and present new evidence if we can show good causeas to why that evidence wasn't presented at thefirst hearing. But very often the reason we didn't do a good job at the first hearing was simply that due to the press of cases our deputy was notsufficiently prepared, or did not subpoenaan essential witness, or an essential witness did not appear. These reasons would not be considered good cause to renew the hearing but do occur with some frequency.... The right to refile and relitigate the 1538.5 motion - even ifit means admitting we did a bad job thefirst time - is (More) SB 933 (Kopp) Page 3 better than the irredeemable dismissal of an important case. 2. Compare to dismissal at preliminary hearing When the defendant's motion to suppress evidenceis granted at a preliminary hearing on a felony offense, and when the defendantis not held to answerin superior court, "the people may file a new complaint or seek an indictmentafter the preliminary hearing, and the rulingat the prior hearingshall not be binding in any subsequent proceeding", Penal Code Section 538.5, subdivision (j). The languageofthis bill parallels that language. When the defendant's motion to suppress evidenceis granted at a preliminary hearing on a felony offense, and when the defendantis held to answer in superior court, "the ruling at the preliminary hearing shall be binding upon the people" unless the prosecution requests a special hearing in superior court. 000035 3. People's ability to relitigate the suppression motion This bill and existing law would permit the following scenario: A defendant's motion for suppression of evidenceis granted at the preliminary hearing(first time), and the defendant1s held to answerin superior court. The prosecution then notifies the defendant and the court within 15 days and requests a special hearing in superior court. At the special hearing, the validity of the searchis relitigated de novo, and the superior court grants the defendant's motion (second time). The prosecution then dismisses the case on its own motion after the special hearing and files a new complaint. At the preliminary hearing, the two prior rulings for the defendant are not binding and the defendant must move to suppress the evidencefor the third time. If the defendant's third suppression motion is granted, the people may movefor a special hearing, for the forth hearing on suppression. This ability to relitigate suppression motions is undoubtedly not intended by the sponsor. SHOULD THE MAXIMUM NUMBEROF SUPPRESSION HEARINGSBE LIMITED TO TWO? (More) SB 933 (Kopp) Page 4 The Schlick Court, citing an earlier case, noted that the legislative intent underlying Section 1538.5: was to reduce the unnecessary waste ofjudicial time and effort involved in the prior procedures, whereby search and seizure questions could be repeatedly raised in criminal proceedings. Citations.! Our’ interpretation of section 1538.5, subdivision (d),is consistent with the foregoing description of legislative intent, precluding the People from 000036 relitigating suppression issues presumablyalready fully and completely litigated in superior court. 4. Opposition California Attorneys for Criminal Justice is opposed to this bill because it would allow prosecutors to "take another shot" with another judge after losing a suppression motion in superior court. CAC] believes that the bill would encourage forum shopping and delay proceedings without any real benefit. 3 fe oe oe sie ok 2 oe ok kc (More) 000037 BILL ANALYSIS THIRD READING SB 933. Kopp(1) 5/20/93 21 SUBJECT: Motions to suppress evidence SOURCE: Los Angeles District Attorney DIGEST: This bill provides that the prosecution be entitled to file a Snew complaint or seek an indictmentafter the defendant's motion to return Sproperty or suppress evidenceis granted at a special hearing of the Ssuperior court. ANALYSIS: Existing law permits a motion to suppress evidenceat a Sspecial hearing in superior court. If the motion is granted, and if the Sprosecution has additional evidence relating to the motion and not Spresented at the special hearing, the prosecution may show goodcauseat Sthe trial why the ruling at the special hearing should not be binding. SAlternatively, the prosecution may seek appellate review as long as the Scase has not already been dismissed. First ofall, this bill specifies that the intent of the Legislature, 000038 Sthroughthis legislation, shall not be construed as a meansto forum shop. This bill would additionally authorize the prosecution to file a new Scomplaintif the case is dismissed by the judgeorif the prosecution Sdismissed the case on its own motion after the special hearing. In that Ssituation, the ruling at the special hearing would not be bindingin the §new action. Thebill specifies that, if a defendant's motion to return property or Ssuppress evidencein a felony matter has been granted twice, the people may Snot file a new complaint or seek an indictment in ordertorelitigate the Smotion orrelitigate the matter de novo at a special hearingin the Ssuperior court, unless the people discover additional evidencerelating to the motion that was not reasonably Sdiscoverable at the time of the second suppression hearing. The purposeofthis bill is to allow the prosecution another chanceafter Slosing a motion to suppress evidence at a special hearing in superior court Swhengood causeorthe basis for appellate review does notexist. According to the sponsor, a recent Supreme Court case, Schlick v. Superior $Court (December 17, 1992) 4 Cal.4th 310,interpreting Penal Code Section §1538.5, "held that the prosecution cannot simply dismiss the case and srefile it and start all over again but must instead pursuetherelitigation Sor appellate procedures set forth in 1538.5 - even if the case had not Spreviously been dismissed and refiled. The Court cited as the basis of Sthis holding the language of PC 1538.5itself. "The problem with this decision is that we can now suffer the permanent Sdismissal of a felony case simply because we did a poor job in presenting Sour evidence at the 1538.5 motion in the superior court. 1538.5, subd.(j) Sdoes permit us to seek to renew a 1538.5 motion first made at the special Shearing in the superior court and present new evidence ifwe can show good Scause as to whythat evidence wasn't presented at the first hearing. But Svery often the reason we didn't do a good job atthe first hearing was Ssimply that due to the press of cases our deputy wasnotsufficiently Sprepared, or did not subpoenaan essential witness, or an essential witness Sdid not appear. These reasons wouldnot be considered good cause to renew Sthe hearing but do occur with somefrequency.... The rightto refile and srelitigate the 1538.5 motion - even if it means admitting wedid a bad job Sthefirst time - is better than the irredeemable dismissal of an important case". Whenthe defendant's motion to suppress evidence is granted at a Spreliminary hearing on a felony offense, and when the defendantis not Sheld to answerin superior court, "the people may file a new complaint or Sseek an indictmentafter the preliminary hearing, and the ruling at the Sprior hearing shall not be binding in any subsequent proceeding", Penal 5CodeSection 538.5, subdivision(j). 000039 The languageofthis bill parallels that language. Whenthe defendant's motion to suppress evidenceis granted at a Spreliminary hearing on a felony offense, and when the defendantis held Sto answerin superior court, “the ruling at the preliminary hearing shall Sbe binding upon the people" unless the prosecution requests a special- Shearing in superior court. FISCAL EFFECT: Appropriation: No Fiscal Committee: No Local: No SUPPORT: (Verified 5/20/93) Los Angeles District Attorney (source) Legislative Oversight Committee CONTINUED SB 933 Page 3 ARGUMENTSIN SUPPORT: According to the sponsor, the purpose ofthis Sbill is to provide the prosecution with the additional remedy ofrefiling a Scase after the case is dismissed because the defendant was granted a Ssuppression motion at a special hearing of the superiorcourt. RJG:Im 5/20/93 Senate Floor Analyses 000040 CONTINUED 000041 BILL ANALYSIS SB 933 Date of Hearing: July 13, 1993 Counsel: Judith M. Garvey ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair SB 933 (Kopp) - As Amended: May20, 1993 ISSUE: SHOULD THE PROSECUTION BE GIVEN A SECOND opPORTUNITY TO SFULLY LITIGATE A PENAL CODE SECTION 1538.5 MOTION TO SSUPPRESS EVIDENCE AFTER SUCH MOTION IS ONCE GRANTED IN THE SUPERIOR SCOURT AND THE CASE DISMISSED AS A RESULT THEREOF? 5 DIGEST Undercurrent law: 1) In criminal cases, Penal Code section 1538.5 specifies the manner in which a defendant can move to suppress evidence obtained by an allegedly illegal search and seizure by peace officers or other state agents. In felony cases, the defendant may make the motion to suppress (hereinafter MTS) in the municipal court at the preliminary hearing or at whatis called a special hearing in the superior court. If the MTSis granted, the suppressed evidence shall not be admissible against the defendant at the trial unless the prosecution successfully pursues one of the remedies set forth in Penal Code section 1538.5. (Penal Code section 1538.5.) 2) The prosecution's remedies are as follows: If the MTS is made and § granted at the preliminary hearing and the case is dismissed by the magistrate or by the prosecution on its own motion, the prosecution maythenrefile the case andstart all over again. The ruling at the first MTS is not binding ontherefilled case. If the MTSis granted at the preliminary hearing but the defendant is nevertheless held to answerfortrial, the prosecution may relitigate the suppression motion de novo at what is called a special hearing in the superior court. Again, the ruling at the first MTSis not binding at the subsequent hearing. (Penal Code section 1538.5) 3) If the MTS is not made by the defendantat the preliminary hearing, § but is madeforthefirst time in the superior court, and is 000042 granted, the remedies available to the prosecution are as follows: a) if the prosecution has additional evidence not presented at the MTSandcan show good cause why such evidence wasnot presented, the prosecution may then present that evidence and seek to have the prior ruling overturned; b) the prosecution may seek appellate review. (Penal Code section 1538.5.) - continued - SB 933 Page 1 SB 933 4) The prosecution cannot simply refile and relitigate the MTS of a case 5 dismissed as a result of an adverse ruling on a MTSin the superior court. Schlick v. uperior Court (1992) 4 C.4th 310, 316. The ruling on the MTS in the superior court would be binding ontherefiled case. This bill: 1) Authorizes the prosecution to file a new complaint(or seek a new indictment) and start a felony prosecution anewifthe case is dismissed either by the judge or the prosecution on its own motion following the granting of a MTS madein the superior court. The ruling on the prior MTS wouldnot be binding in the new action. 2) Specifies that if a defendant's MTSin a felony matter has been § granted twice, the prosecution cannot file a new complaint or seek a new indictment in order to relitigate the suppression issue unless the prosecution discovers additional evidence relating to the motion that was not reasonably discoverable at the time of the second suppression hearing. 3) Declares legislative intent that the provisions of this bill shall 5 not be construed as an encouragement to forum shop. COMMENTS 1) Purpose. According to the author: The recent California Supreme Court case of Schlick v. Superior Court (1992) 4 Cal.4th 310, 315, held that the express terms of Penal Code section 1538.5 prohibit the prosecution from relitigating a MTS made andgrantedin the superior Court. Thus, the prosecution cannot simplyrefile a case andrelitigate the suppression motion (as it can under the language of Penal 000043 Code section 1538.5 if the MTS is made and granted at the preliminary hearing). Prior to the Schlick case, the prosecution could simply refile a case andrelitigate the suppression motion if the prosecution was notsatisfied with the way the suppression motion waslitigated or the ruling on the motion in the superior court. Suchrefiling and relitigation was done - not often, but occasionally - and had been approved in the case of People v. Methey (1991) 227 C.A.3d 349, which the Schlick case overruled. 2) SB 933. SB 933 will restore the law to that status quo ante prior » Ss to Schlick but with the limitation that the prosecution cannot refile a case and relitigate the suppression motion if such MTShas been granted twice unless new evidence is discovered which was not reasonably discoverable to the prosecution at the time of the second suppression hearing. Prior to Schlick, it was technically possible for the prosecution to litigate a suppression motion four times (see Comment 3 of the Senate Committee on Judiciary Analysis of SB 933 as SB 933 appeared prior to the most recent amendment - continued- SB 933 Page 2 SB 933 adding subdivision (p) and limiting such litigation of suppression motions to two times). 3) Need for Bill. The reasons the prosecution seeks the right to § refile a case andrelitigate a suppression motion after such motion is granted in the superior court are as follows: a) History. Basically, this bill simply restores the law to the status quo ante before Schlick but with the limitation of two suppression hearings only. Moreover, in the Schlick decision, the Supreme Court did not say there was necessarily anything unfair, unreasonable or Sunconstitutional aboutrefiling a case andrelitigating a MTS granted Sin the superior court but merely that the language of Penal Code section 1538.5, strictly construed, did not permitit. b) Volume. Whydoes the prosecution want two shots at the apple? Isn't one fully litigated hearing enough,particularly since Penal Code section 1538.5 does allow the prosecution to renew the motion and present additional evidence if such evidence were not reasonably discoverable to the prosecution at the time .of the suppression motion in the superior court and/or to seek 000044 appellate review? The Los Angeles District Attorney (LADA) says no. The LADAstates that "superior court calendars are crowded. Deputy district attorneys must juggle many cases each day. Many 1538.5 motions are calendared but are not heard - the case maybe continued or perhaps somesettlement arrived at. The prosecutor rarely knows exactly which 1538.5 motion is actually going to belitigated on a particular day. Thus, the prosecutor may notbe fully knowledgeable of the facts or what witnesses are necessary on every case. And usually the defendant's moving papers are very vague and merely assert that the search was without probable cause without specifying exactly what was wrong with the search." The LADAstates that "if a 1538.5 hearing does take place, the prosecutor may discover in the middle of the hearing that the grounds for the motion were not what the prosecutor anticipated and that a necessary witnessis not available or that important evidence was not presented. Sometimes the prosecutor will be "ambushed" by a defense attorney who presents several unanticipated witnesses or an unanticipated legal theory. Often, a skilled prosecutor can overcome these problems and effectively present the prosecution's evidence showing that a search waslegal. But sometimes, the prosecutor cannot. And the only way to show that the search waslegalis to start all over and relitigate the suppression motion. This can be doneif the motion is granted in the municipal court. But, since Schlick, it cannot be done if the motion is granted in the superior court." - continued- SB 933 Page 3 SB 933 Fairness. Often, the MTSis dispositive of a case. Ifit is granted, the case must be dismissed. If it is denied, the defendant will plead guilty or in all likelihood be found guilty if brought to trial. The LADAbelieves that "it is unfair to the prosecution and to the law abiding citizensof this state for a criminal defendant whose culpability for a serious felony may be beyond question to "beat the rap" simply because an overworkedprosecutorat one pretrial hearing was unable to present the People's evidence in the most effective manner. The ability to refile and relitigate the suppression motion - one more time - will largely overcome this without comprising any 000045 d) ofa constitutional right of the defendant or subjecting him to repeated and harassing prosecution. Refiling andrelitigation of suppression motions, as done prior to the Schlick case, was never considered unreasonably burdensome upon a defendant." Refiling. Penal Code section 1538.5 explicitly allows such case refiling and relitigation of suppression motions following the granting MTSin the municipal court. Should there be any difference when Sthe MTSis madein the superior court, particularly when SB 933limits Ssuch litigation to two hearings? e) g) Shift to Superior Court. The LADAbelievesthatif this bill is not enacted, defense attorneys in felony matters will no longer make their MTS's in municipal court - where the prosecution can refile and relitigate the matter or seek relitigation in the superior court - where the prosecution's remediesare limited to appellate review. This will place the entire burden of suppression motions upon the superior court whereasprior to Schlick, most MTS were litigated in the municipalcourt. Expedite Process. If this bill is not enacted and the LADAis correct, defense attorneys will make suppression motions in the superior court in virtually every case in the hopesthat the prosecution will do a poor job and the court will grant the MTS. The prosecution will then be limited to its appellate remedies, but if the prosecution did not present sufficient evidence to justify the search at the MTS, there would be nobasis for an appeal and the case would be irretrievably dismissed. However, if the bill is enacted, the defense attorneys would be unlikely to bring weak suppression motions since they would know that even if they won asa result of poor lawyering on the part of the prosecution or because the defense successfully surprised the prosecution, the prosecution would simply refile the case and would be better prepared the second time. This bill will expedite the processing of criminal cases by discouraging defense attorneys from presenting meritless suppression motions. Financial Incentives to Refile vs. Appeal. Even if the prosecution is certain it would prevail if an adverse ruling on a MTSin the superior court were appealed,it is often cheaper and faster to simply refile andrelitigate the matter, - continued- SB 933 Page 4 SB 933 000046 particularly if the prosecution can present the case more effectively the second time than to pursue appellate remedies. Also, during the period of appeal, most defendants, if in custody, must be released. Often they cannot be located even if the prosecution wins on appeal. h) Discourage Forum Shopping. The LADAstates that "courts are aware of the problems caused by forum shopping and have devised procedures to prevent it. Moreover, cases are usually assigned by court clerks or by random assignmentso that there is no way a prosecutor could direct a case into a particular court." i) Benefit. The LADAbelieves that nothingin this bill will enable police to get away with illegal searches. All it does is give the prosecution a second chance to showa search waslegal. 4) Related Legislation. One of the many provisions in AB 1215 (Rainey) would have allowedrefiling, as specified, and the use of previously suppressed evidence. Thisbill failed passage on April 13, 1993. 5) Opposition. a) The California Attorneys for Criminal Justice (CACJ). CACJ oppose Sthis bill because it "would encourage forum shopping" and "delay proceedings without any real benefit." This bill contains legislative intent that in amending section 1538.5 of the Penal Codethis act shall not be construed or used by a party as a means to forum shop. b) The Judicial Council. The Judicial Council opposes thisbill because by reversing the Schlick rule, this bill would provide the prosecution with unnecessary additional refiling remedies and thereby expend more scarce judicial time and efforts in such proceedings. SOURCE: Los Angeles District Attorney SUPPORT: California Peace Officers' Association California Police Chiefs' Association OPPOSITION:California Attorneys for Criminal Justice The Judicial Council of California 000047 - continued - SB 933. Page 5 000048 BILL ANALYSIS UNFINISHED BUSINESS SB 933 Kopp(1) 8/16/93 21 p. 1400, 5/28/93 74-0, 8/26/93 SUBJECT: Motions to suppress evidence SOURCE: Los Angeles District Attorney DIGEST: This bill provides that the prosecution be entitled to file a Snew complaint or seek an indictmentafter the defendant's motion to return Sproperty or suppress evidenceis granted at a special hearing of the Ssuperior court. Assembly Amendments providethatrelitigation of a specified motion must Sbe heard by the same judge, if possible. ANALYSIS: Existing law permits a motion to suppress evidence at a Sspecial hearing in superior court. If the motion is granted, and if the Sprosecution has additional evidencerelating to the motion and not Spresented at the special hearing, the prosecution may show good cause at Sthe trial why the ruling at the special hearing should not be binding. Alternatively, the prosecution may seek appellate review as long as the 000049 Scase has not already been dismissed. First of all, this bill specifies that the intent of the Legislature, sthroughthis legislation, shall not be construed as a means to forum shop. This bill would additionally authorize the prosecution to file a new Scomplaintifthe case is dismissed by the judge or if the prosecution Sdismissed the case on its own motion after the special hearing. In that Ssituation, the ruling at the special hearing would not be binding in the Snew action. Thebill specifies that, if a defendant's motion to return property or Ssuppress evidence in a felony matter has been granted twice, the people may Snot file a new complaint or seek an indictmentin orderto relitigate the Smotionorrelitigate the matter de novo at a special hearing in the Ssuperior court, unless the people discover additional evidencerelating to Sthe motion that was not reasonably discoverable at the time of the second Ssuppression hearing. Relitigation of the motion shall be heard by the same Sjudge whogranted the motion at the first hearing if that judge is Savailable. The purposeofthis bill is to allow the prosecution another chance after Slosing a motion to suppress evidenceat a special hearing in superior court Swhen goodcause orthe basis for appellate review does not exist. According to the sponsor, a recent Supreme Court case, Schlick v. Superior SCourt (December 17, 1992) 4 Cal.4th 310, interpreting Penal Code Section §1538.5, "held that the prosecution cannot simply dismiss the case and Srefile it and start all over again but must instead pursuetherelitigation Sor appellate procedures set forth in 1538.5 - even if the case had not Spreviously been dismissed and refiled. The Court cited as the basis of this holding the language of PC 1538.5 itself. "The problem with this decision is that we can now suffer the permanent Sdismissal of a felony case simply because we did a poorjob in presenting Sour evidence at the 1538.5 motion in the superior court. 1538.5, subd. (J) Sdoes permit us to seek to renew a 1538.5 motion first made at the special Shearing in the superior court and present new evidence ifwe can show good Scause as to why that evidence wasn't presented at the first hearing. But Svery often the reason wedidn't do a goodjob at the first hearing was Ssimply that due to the press of cases our deputy wasnotsufficiently Sprepared, or did not subpoena an essential witness, or an essential witness Sdid not appear. These reasons would not be considered good cause to renew Sthe hearing but do occur with some frequency.... The rightto refile and Srelitigate the 1538.5 motion - even if it means admitting we did a bad job Sthe first time - is better than the irredeemable dismissal of an important Scase". 000050 Whenthe defendant's motion to suppress evidence is granted at a Spreliminary hearing on a felony offense, and when the defendant is not Sheld to answerin superior court, "the people mayfile a new complaint or Sseek an indictmentafter the preliminary hearing, and the ruling at the Sprior hearing shall not be binding in any subsequent proceeding", Penal SCode Section 538.5, subdivision (j). The language ofthis bill parallels that language. Whenthe defendant's motion to suppress evidenceis granted at a preliminary hearing on a felony offense, and when the defendantis held Sto answer in superior court, "the ruling at the preliminary hearing shall Sbe binding upon the people" unless the prosecution requests a special Shearing in superior court. CONTINUED SB 933 Page 3 FISCAL EFFECT: Appropriation: No Fiscal Committee: No Local: No SUPPORT:(Verified 8/26/93) Los Angeles District Attorney (source) Legislative Oversight Committee ARGUMENTSIN SUPPORT: According to the sponsor, the purposeofthis Sbill is to provide the prosecution with the additional remedyofrefiling a Scase after the case is dismissed because the defendant was granted a suppression motion at a special hearing of the superior court. RJG:Im 8/26/93 Senate Floor Analyses 000051 CONTINUED 000052 BILL ANALYSIS SB 933 SENATE THIRD READING SB 933 (Kopp) - As Amended: August 16, 1993 SENATE VOTE: 33-1 ASSEMBLY ACTIONS: COMMITTEE PUB. S. VOTE 7-0 COMMITTEE VOTE DIGEST Undercurrent law: 1) Ifa motion to suppress (MTS) is made and grantedat the preliminary § hearing and the case is dismissed by the magistrate or by the prosecution on its own motion, the prosecution maythenrefile the case and start all over again. The ruling at the first MTSis not binding on the refilled case. If the MTSis grantedat the preliminary hearing but the defendant is nevertheless held to answerfortrial, the prosecution mayrelitigate the suppression motion de novo at whatis called a special hearing in the superior court. Again, the ruling at the first MTSis not binding at the subsequenthearing. 2) If the MTSis not made by the defendantat the preliminary hearing, but § is madefor the first time in the superior court, and is granted, the remedies available to the prosecution are as follows: a) if the prosecution has additional evidence not presented at the MTS and can show good cause why such evidence was not presented, the prosecution may then present that evidence and seek to have the prior ruling overturned; b) the prosecution may seek appellate review. 3) The prosecution cannot simply refile and relitigate the MTS of a case § dismissed asa result of an adverse ruling on a MTSin the superior court. Schlick v. Superior Court (1992) 4 C.4th 310, 316. Theruling on the MTSin the superior court would be binding ontherefiled case. Thisbill: 1) Authorizes the prosecution to file a new complaint (or seek a new indictment)and start a felony prosecution anew if the case is dismissed either by the judge or the prosecution on its own motion following the granting of a MTS madein the superior court. The ruling on the prior MTS would not be binding in the new action. 000053 2) Providesthat relitigation of the motion should be heard by the same judge who granted the motionat the first hearing,if available. 3) Specifies that if a defendant's MTS in a felony matter has been granted § twice, the prosecution cannotfile a new complaint or seek a new indictmentin orderto relitigate the suppression issue unless the prosecution discovers additional evidence relating to the motion that. - continued - SB 933 Page 1 SB 933 was not reasonably discoverable at the time of the second suppression hearing. 4) Declares legislative intent that the provisionsof this bill shall § not be construed as an encouragement to forum shop. COMMENTS According to the author, this bill was written to correct an anomaly in the Slaw caused by the California Supreme Court decision in Schlick v. Superior SCourt. Prior to that case, if the defense challenged the lawfulness of a Ssearch in a felony matter, the prosecution had four opportunities to show Sthe search waslegal, two at the preliminary hearing in the municipal court Sand twoat a special pretrial hearing in the superior court. As result Sof the Schlick case which relied upon the language of Penal Code Section §1538.5 the prosecution now haseither as many as three opportunities to Sshow that a challenged search waslegal, if the challenge is first brought Sat the preliminary hearing, or as few as one opportunity if the challenge Sis first brought in the superior court. This bill will simplify Penal Code Section 1538.5 so that the prosecution Swill have two opportunities to show that a challenged search was legal Sregardless of whether the challenge to the search is first brought in the Smunicipal court or the superior court. It presents a balanced approach to Sthe litigation of searchto thelitigation of search and seizure motions. FN 003463 000054 - continued- SB 933 Page 2 000055 LEGISLATIVE RESEARCH & INTENT LLC 1107 9TH STREET, SUITE 220, SACRAMENTO CA 95814 WWW.LRIHISTORY.COM . INTENT@LRIHISTORY.COMBp) t = ? Governor's Chaptered Bill File SOURCE: CALIFORNIA STATE ARCHIVES 000056 oye Jack | Mares & @ Corti Ross Adare Mechaet J. Karner Chat Deputy : Barén L Anderson {Dogan Kroey Janes kL. Aterd - > . Aran eB 5‘ Crane C. Asda Sutrey LaBreaioe Legislative Counsel Foe BS Oar A Wetres. Ferecre P. Bane Veta K Lewes Oavd0, Aven rt of it - Dera F. dormVea Soedeusona C. David Dekoreer: Pe t WYMUta philoso Risto Robert Cadien Outy Gaynnae t Byrd eaeMen Faberos Soerberso Francece A biaren Jrenes Alera mie or Sat 8 FobetG ser BION MM. GREGORY Ber € Osie Powe terncoe Varet Otve JetreyA Onland Macheet M. Meresr: Tracy 0. Powet & Canon J awe John A MagerMerguerte Roth Frances S Oortn Adal tunce Mictegi Ht. Upson Maseen $ Dunn Qonns L Meute COnvengher Tride Saron A Feber Dara Pedy Propet Onputes Cisy Fiker Wachosl B. Sarre — Paro PR Gates Keath T Scouts Rete Capaat, Scat M25 Debra ZuScn Goons Vita K Sat ocarerta, CA 95014-4996 Swa K Gide Jesscal Seee (916) 445-2057 Alen D. Gress Eten Sead Telaaper (516 327-0769 era Hhakos marke Mark F:arte: Terry Jara T. Harrington Je? Thom . . Buides & Hew Pechara Thomason Sacramente, California meante Dhraber Ah Wer Poien & Ingvar oeeee oA So3eor, Whee September 14, 1993 Ome 8 buon sak@Lorenan Rechael FL Mehy Honorable Pete Wilson oepees Governor of Caiifornia Sacramento, CA 95814 Senatepili wo. 935 Dear Governor Wilson: Purc.snt to your request, we have reviewed the above-number2d bill :uthored by Senator Kopp and, in our opinion, the title and form are sufficient and the bill, if chaptered, will be constitutional. The digest on the printed bill as adopted correctly reflects the views of this office. Very truly yours, Bion M. Gregory Legislative Counsel By korotFae, Verne L. Oliver Principal Deputy VLO: nd Teo copies to Honorable Quentin Kopp ’ pursuant to Joint.Rule 34. 000057 - = « «es a - mm ew a aoe mmm Eee wee Plifornia State Sn, aN= STATE SENATOR QUENTIN L. KOPP ElSHre SINATC RiaL CSTR OT SER TE LET al TAN FPANTaN Sat ate or yn rs September 7, i993 Hon. Pete Wilson Governor, State of California tate Capitel Sacramento, CA %5814 Senate Bill 333 Attention: Ms. Karen Morgan Dear Governor Wilson: Senate Bill 933, which has been approved by the State Legislature, corrects an anomaly in the law caused by the December, 1992 California Supreme Court decision in Schlick v. Superior Court (4 Cal.4th 310). As a result of the Schlick case, the prosecution now has either as many as three opportunities to show under Section 1538.5 of the Penal Code that a challenged search was legal, if the challenge is first brought at the preliminary hearing, or as few as one opportunity if the challenge is first brought in the superior court. SB 933 will simplify the procedure so that the prosecution will have two opportunities to show that a challenged search was legal regardless of whether the challenge to the search is first brought in the municipal court or the superior court. It presents a. balanced approach to the litigation. of search and seizure motions under Section 1538.5. SB 933 also prohibits "forum shopping" by requiring that all search and seizure motions in a case be heard by the same judge, if that judge is available. {he measure is sponsored by the Los Angeles District Attorney, and is supported by the California Peace Officers Association and the California Police Chiefs Association. S8 9353 Was approved by the State Asserbly on August 26th, 74-0, and by the State Senate on September lst, 27<1. 000058 ee mee eee we ‘ Hon. Pete Wilson September 7, 1993 Page Two 1 I sincerely ask for your approval and signatureon SB 933. ke tfully yours, gy Za Ly ( tt ‘ AGShe Kf:fe QLK: jn , “ff Enclosure 000059 STATE OF CALIFORNIA Ee) OFF OF CRIMINAL JUSTICE PLANNING ~ OCIP 855 (492) ENROLLED SILL REPORT Department OFFICE OF CRIMINAL JUSTICE PLANNING Bil Number $B 933 Author Kopp Summary This bil will permit the prosecutor to refile a case after the defendant has won a motion tc suppress evidence and as a result the case is either dismissed by the juage or voluntarily dismissed by the prosecutor. Therefore, this bill allows the state another opportunity to litigate the suppression issue. Summary of Sugpen This bill merely returns the law to the status quo prior to the California Supreme Court's decision in Schlick v. Superior Count. 4 Cal.4th 310 (1992). Since vetiling is permissibie iia case is dismissed at the preliminary hearing stage, refiling should not be prohibited merely because it occurs as a result of a successful suppression motion at a special pre-trial hearing. | Prosecutors are often “ambushed” by defense claims at such hearings and may not have the | informatian or witnesses to successfully resist defense suppression motions at this stage. It is uniust te permit senous criminals to escape justice merely because their alforneys were able te catch the prosecutor unprepared at an earviy stage. Multiple refilings would be = aair to the defendant. However, this bill's tworelitigation ‘imit strikes an appropriate compromise positicn. Specific Findines Under existing law, in felony cases defendants may raise a motion to suppress evidence or return wrongfully seized property which may be madeat the preliminary hearing or at a spacial evidentiary hearing called for this purpose. {f the defendant's motion to suppress at a special hearing is granted, the prosecution has the option of appealing (if it has grounds to do so an the basis that an incorrect legal standard was applied) or aitempting to show good cause at tria! why the decision at the special hearing should not be binding -- such as the existence of new evidence in opposition to the defense motion that was not reasonably obtainable at the time cf the special hearing. In Schiick v. Superior Court (cited supra), the California Supreme Court held, as a matter of statutory interpretation, that the prosecution may only seek the above two remedies (appeal and good cause)if it loses a suppression motion. The prosecution is thus barred from refiling a case under these circumstances if it has no grounds for appeal and cannot make the requisite good cause showing. (This would be the case, for exampie, where the motion was granted because of conclusory statements by the defense that there was not probable cause for the issuance of the warrant which the prosecution was unable to rebut Recommendation SIGN Legislative Analyst / : 7K Date | OSplhy Direct Date ay a cad 7 ' t; g Sia afShid 7 9-6-93 7-F-9F3 y}hte~ i; pf 000060 mmaene eA se 933 (Kopp) ® @ Page 2 because it failed to have the necessary witnesses available.) In these circumstances, the Supreme Court field, if the case is dismissed e:ther voluntasily by the prosecution or by the judge, the defendant cannot be re-prosecuted for the same offense. However, under current law the prosecutor could refile chargesif the evidence was suppressed at a preliminary hearing. This bill will pesmit the prosecution to refile charges against a defendant whose case was dismissed {voluntarily or not} as a result of a successful moticn to suppress evidence. However, the prosecution may not requestrelitigation of a motion to suppress evidence if the defendant's motion to suppress has been granted twice. This prchibition also applies to preliminary hearing dismissals. The prosecution may only re-liggate a third time if the prosecutian discovers new evidence relating to the motion that was not reasonably discoverable at the time of the prior hearing. This bill requires that, if available, relitigation of suppression motions shal! be heard by the iudge who granted the motion at the first hearing. This bil! includes statements of tegislative intent that the bill's provisions are not intended to be used as a vehicle for forum shopping. Analysis This dil would restore the sfatus quo prior to the Schiick case. It prevents the defense from having a piocedurai advantage in raising suppression motions in speciai hearings instead of at a preliminary hearing. This bill rectifies this by providing a cap on telitigation to two re-litigations -- ie., the prosecution gets at mostthree tries to fight a suppression motion. After tnat, the charges may be refiled only if the state has new evidence relating to the suppression motion that was not reasonably discaverable before. This is a fair compromise. Prosecutors, especially in our larger cities are cften overworked. They must juggle cases and deal with an ever changing calendar. Even very compeient attorneys May be surprised by defense claims that evidence should be suppressed. Often prosecutars have only a vague idea of what the defense will claim was the defect in tha seizure of evidence. Prosecutors may thus be caught unprepared or without necessary witnesses. This should nct prevent the prosecution from being able {to re-litigate the motion by dropping the case andrefiling. Since this is commonly done at the preliminary hearing stage, it is not unfair to expose defendants to this possibility after a dismissal as a result of a suppression motion at a special hearing. The Supreme Court's opinion in Schiick was based on statutory interpretation, not concepts of fairness or constitutional flaw, So this changeis not barred. Therefore, this bil is an apprapriate comoromise and safeguard. {i ensures that the prosecution will not be prevented from re-litgating evidentiary mcetions against clever defense aitorneys who catch them occasionaliy unprepared. It also ensures that there are not procedural advantages for ihe defense to raise its suppression motions in one type of hearing instead of ancther. It also ensures that the prosecution will not be untairly permitted to continue to harass defendants against whom the government has been unable to prevail in evidentiary hearings. The bill's provisions also discourage forum shepping -- by the defense or the prosecution. Therefore this bill is a useful modification of current iaw. Support Los Angeles District Attorney (Source) Legisiative Oversight Committee California Peace Offices’ Association California Police Chiefs’ Association Oppesitign Califomia Attorneys for Criminal Justice The Judicial Council of California 000061 . ‘ses «8 «Ss — = mm @ « Pe ee eeeeee ee Manama : Ascommendation SIGN Introduced Passed Senate Judiciary Committee Passed Senate Floor (33-1) Passed Assembly Public Safety Committee Passed Assembly Floor (74-0) Senzie Concurs in Assembly Amendments Enrolled sm imam mRA wee (10-4) (27-1} aeT ee tie (7-0) ~ 000062 a “Analyat Nams: sharon Loer & o vo Phone No: 322-4916 ATE AND CONSUMER SERVICES AGENCY . NO ENROLLED BILL REPORT REQUIRED RTMENT , AUTHOR SELL NUMAER 2NERAL SERVICES Kopp SB 933 Technical bill ~ No programa or fiscal changes to existing program. No analysie requiced. No recomnandation on signature. Sitl as enrolled no longer within scope of responsibility or program of thia Department. This Sif makes various changes to current law regerding the suppression of evidence. This bili wouid now the peopte to file a new complaint or seck an indictmentif the case has been dismissed by ether he ccavt or by the people. tin such cases, if a ruling was made at a special hearing of the superior coust 0 Suporess evidence or retum property, that ruling would not be binding on any subsequent hearing. ‘his bill would not alter any procedures foitowed by the California State Police (CSP) regarding searches ind seizure of property. Therefore, this bill would not impact CSP and the Department of General ervices dees nct make a recommersation. teiginla 8, Deuglaa osisian: Dircetor - Legislation ris, Phone: 448-3946 BALL NUM@ER California Highway Patrol | Kopp SB 933 SUBIECT DATE LASTAMENDED As Introduced Search Warrants: Motions to Suppress Evidence 3-49-93 x No Concern Technical bill - No program or fiscal changes to existing program. No analysis required. No recommendaiticas on signature. Bill as enrolled no longer within scope of respcnsibitity or pregram of this Departmeantt. Comments: The Attorney General acis as the California Highway Patrol's attorney, and, therefore, we defer to the Department of Justice. Prepared by: Dorothy O'Neil Title: AGPA Phone No,: 657-7249 LV 4 DEPARTMENT| | pfff California 000064. Mm imme eRe Re _ » Ansiyst Name: Den Weper Prone Number: 322 J TATE AND CONSCKER SERVICES AGENCY OLLED BILL REPORT PARTMENT AUTHOR BILL NUMBER onsumer Affairs | Kopp { 5B 933 LESUMMARY ‘isting law permits a motion to suppress (MTS) evidence at a special hearing the superior court. If the motion is granted, the prosecution’s options e: 1) if the prosecution has additional evidence relating to the MTS and@ can ow good cause why such evidence was not presented, the prosecution may then esent that evidence and seek to have the prior ruling overturned; 2) the osecution may seek appellate review. The prosecution cannot simply refile d relitigate the MTS of a case dismissed as a result of an adverse ruling on HTS in the supericr court. $33 provides that the prosecution be entitled to file a new complaint or ek an indictment and start a felony prosecution anew if the case is diswisse< the judge or on a wnotion by the prosecution after a defendant‘’s HTS is anted at a special hearing of the superior court. e bill provides that the relitigation of the MTS would be heard by tie sane dge who granted the motion at the first hearing, if available. The bill aisc ecifies the prosecution cannot file a new complaint or seek a new indictment relitigate a MTS that has been granted twice in a felony case. unless the — osecution discovers evidence relating to the motion that was not reasonably scoverable at the time of the second MTS hearing. e bill declares Legislative intent that the provisions or tnis bill shall not viewed as encouragement to forun shop. CKGROUND cording to the sponsor, the Los Angeles County District Attorney (LACDA), is bill is needed te correct an anomaly in the law caused by the California oreme Court decision in Schlick v. Superior Court. Prior to that case, if > defense challenged the lawfulness of search in a felony case, the »secution had up to four opportunities to show the search was iegal, two at 2 preliminary hearing in municipal court and two at the special pretrial arcing in the superior court. As a result of the Schlick case, which relied on the language of Penal Code Section 1538.5, the prosecution now has either many as three oppertunities to show that a challenged search is legal, if 2 challenge is first brought at the preliminary hearing, or only cone sortunity if the challenge is first brought in superior court. te: ASSEMBLY Vote: SENATE oor: Aye_74_ No_O Floor: Ay6_33. No_i__ ylicy Conmittee: Aye_7 No_O Policy Committee: aye_10 Noi Act? fomittee) Aye Nerert, Sulte 200 Naceacmenta, CA OSATd (9165 448-0868 10551 Jefferson Boulevard Cuiver City, CA 90232 Phone: (310) 204-0502 Fax: (310) 204-2438 000076 Oar: JUDICIARY comnrttee@ BACKGROUND INFORMATION §$~5957 SEBI3B3 Please complete this form and return it to the Senate Judiciary Committee, Room 2032, as soon as vossible. Your bill cannot be heard until this form is returned. PLEASE CALL AB SOOM AS POSSIBLE TO SET YOUR BILL. 1. Who on your staff is responsible for this measure? David Smith (445-0503) 2. Which agency, organization or individual requested the introductionof this bill? Name: LA District Attorney Contact Person: Richard Chrystie (213) 974-1641 - LA DA Jim Provenza 442-0668 ~- Leg. Advocate for LA DA Phone number: 3. Which agencies, organizations, or individuals (cutside of the sponsor) have expressed support? 4. Which agencies, organizations or individuals have expressed opposition? 5S. If a similar bill has been introduced in a previous session, what was the number and year of its introduction? 6. What problem or deficiency under current law does the hill seek to remedy? Please see attached 7. Are you planning any amendments to be offered before the Committee hearing? Not at this time. If you have any further background information or material relating to this measure (letters of support or opposition, reports, opinions, citations, etc.) please attach copies or state where such information is available. , . 000077 Your cooperation is appreciated. 4 . ~ gts ® | “ymoer vw GIL GARCETTI LOS ANGELES COUNTY DISTRICT ATTORNEY “ S 4 6 28000 CRIMINAL COURTS BULDONG 2:0 WEST TEMPLE STREET LOS ANGELES CA S012 2210 «12133 974 3501 ENCLOSED IS A LEGISLATIVE PROPOSAL FROM THE OFFICE OF THE LOS ANGELES COUNTY DISTRICT ATTORNEY In response to a request from District Attorney Gil Garcetti, our deputies have submitted proposals for legislation. Enciosed is such a proposal which the District Attorney believes would be beneficial in addressing current crime issues. included in the packet is a short summary ofthe legislative proposal and/or an intra-office communication in which the deputy explains the need for the legislation, and a draft of suggested language for the new or amendedstatute. In some cases there mayalso be copies of other related statutes, case law, or similar supporting documents.. Thank you for your consideration of this legislative proposal. If you have questions aboutit, please call either of the following individuals: Sandra L. Buttitta, Chief Assistant District Attorney Los Angeles County (213) 974-3505 Margaret Barreto-Morehouse Jim Prange — lobbyse Deputy District Attomey 4Y2- 0668 Special Assistant to Ms. Buttitta FAX 4 (213) 974-3500 19 ~192Y Richend Clappre will poebebly toed, 1/93 000078 EE -_ on om rnmt ane eee MOTIONS TO SUPPRESS EVIDENCE: Penal Code Section 15385: Amend section (j) of statute to altfw D.A. to dismiss and refile cases upon court’s granting of suppression motion brought in Superior Court, as D.A. is permitted to do upon granting of suppression motion broughtin Municipal Court. Under current law D.A. is required to pursue appellate remedies when suppression motion is brought and granted in Superior Court. 000079 ae i ® MEMORANDUM @ TO: _SANORAL. BUTTITTA Chief Assistant Distnct Attorney FROM: RICHARD J. CHRYSTIE Deputy District Attorney Prosecution Support and rainingyo ~ SUBJECT: PROPOSED LEGISLATION RE 1538.5 MOTIONS DATE: DECEMBER28, 1992 This is in response to your memorandum requesting legislative propcsals. A recent decision of the California Supreme Cour,Superor Mat. News Slip Opinion Supplement, Dec. 21, 1992, considered the issue of remedies available to the prosecution when a Penal Code section 1538.5 motion is granted and evidence is suppressed resuiting in the dismissal of a felony case. This casefirst approved prior decisions holding that if a 1538.5 motion is granted and a felony dismissed in themunicipal at the preliminary hearing stage, the prosecution can simply refile the case and start all over again - among otherremedies. However,in reference to the facts of the Schlick caseitself, where the suppression motion was made and granted at the “special hearing” in the superior pursuant to FC 1538.5, subd. (f), the Supreme Court held that the prosecution cannot simply dismiss the case and refile it and start all over again but must instead pursue the relitigation or appellate procedures set forth in 1538.5 - evenif the case nad not previously been dismissed and refiled. The Court cited as the basis of this holding the language of PC 1538.5 itself. The problem with this decision is that we can now suffer the permanent disrnissal of a felony case simply because we did a poorjob in presenting our evidence at the 1538.5 motion in the superior court. 1538.5, subd. (j) does permit us to seek to renew a 1528.5 motion first made at the specia! hearing in the superior court and present new evidanca if we can show good cause as to why that evidence wasn't presented at the first hearing. But very often the reason we didn't do a good job at the first hearing was simply that due to the press of cases our daputy was not sufficiently prepared, or did not subpoena an essential witness, or an essential witness did not appear. These reasons would not be considered good cause to renew the hearing but do occur with some frequency. mn nen eRe 000080 ~ a_i To solve this problem, ! suggest !agislation allawing us to simply dismiss and refile a felony case in the event a 1538.5 motion is granted in the superior court and the only way we Can correctly present our evidence at the 1538.5 mationis to start all over again. Naturally, this is not something we would want to do often since by such dismissal andrefiling we are. in essence, admitting that we did an inexcusably poor job the first time. But since the law does permit us to dothis if we lose a 1538.5 motion at the preliminary hearing stage of a case, andsinceif the Schlick case stands as it is it will be the single exception to our right to refile a felony matter after suffering one dismissal, { think we are justified in asking fer legislation allowing us to dismiss and refile after losing a 1538.5 motion in the superior court. The rightto refile and relitigate the 1538.5 motion - evenif it means admitting we did a bad job the first time - is better than the irredeemable dismissal of an important case. Here's my suggested amendmentto 1538.5: The language appearing in underline should be inserted within subsection (j): “ti defendant's motion is granted at the special hearing in the superior court, the people,if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good causeatthe trial why such evidence was not presented at the special hearing and whythe priorculing at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (0), unless the court priorto the time such review is sought has dismissed the case pursuant to Section 1385. hasbe ndismissed Section1385if dismisstheirmotion neanle may file complaint or indictment fuling special hearingsha!!_not_be binding insu sequentproceeding, Ifthe property . . [etc]. This new languageparallels existing language within subsection (j) which permits the refiling of a felony whenit is dismissed as a result of the granting of a 1538.5 motion at the preliminary hearing stage. Please call meif you wish further explanation of this proposal. c: Abram Weisbrot Curtis A. Hazell 000081 eR mem eA § 1538.5. Motions te returs property or suppress evidence (a) Gronads. ) First beariag.. When consisters with ube orcoodures set forth in this secnon nnd subject to the provisions of Secnon 170 through 170.6 ofthe Code ofCivil Procedure. the motion should first de heard by che magistrate who ixsped the search warrant? if there is a warrant. (c) Evidences. Whenever ssearch or seizure mocion is made m che smueicipal, pastion, of seperate coart af provided in this secuon. the padge or magistrate shall receive evidence on any sue of fact nacematy to desermane the motion. secoon, the property of evidence shall not be adimusibic against the movest af emy. trial ar other bearmg unicss further Proceetings authorized by this aon, Secton 871.5, Secsian 1238. of Secnon 1466 sre vei | i of court after IC days unless the property is otherwine subject to § 1538.5 shall be restncted to evideace sought to be introduced by the people at the prelunmary hearmg. (y) Misdemeanor, pre-trial wetien et cpecial bearing. If the property or evidence reiztes (uo a miidemeanor compiaat. the movon shall be made in the mamecpe) or jusnee cour before tnal and heard pror to trial at a speczal hearing reieung 10 the validity of the search or seizure. If thé property or endence reiates to a mrusderscenor filed togeiner with a felony, the procedure provided for a felony in ths secuon and Secnons 1258 and 1$39 shall be appbcable. () Motios at trisl. Lf. prior to che triel of 2 felony or mutderocaner. Opporturaty for this mogon did not exist of the defendant was not aware of the grounds for the mouon. the defendant shall have the right to meke this mouon dunng the course of trial in the municipal. jumice. oc suipenos court. () Felony; renewal of mation st special basriag, review. [f the property or evidence obtamed reiates to a felony offense initiated by contplains and the defeadant was held to answer at the prekminary heanrg, or if the property of evidence relates 10 a felony offense initiated by indicrment. the defendant shal) have the right to renew or make the motion in the superior court at 3 spoctal hearing reie*ang to ube validity of the search or seizure which shall be heard prior to trial and at least 10 days. after ice 10 the people uniees the people are willing to waive 2 portoa of chis time. Uf che offense was initiated by mndictment“i t i ! s inicieaed by coomplaint and the defendant's motion for the return or supprenion of the property or evidence st the prekiaunery 000082 § 1538.5 vpor the filing of as informenon. the people within {3 days after the poeiuminary heanng reqpesi in the supenor court a spemal hearmg. wi which case the valdsty of the search or sexxure saall be rekingzted de nove on che tasss of the endence presented at tbe spectal hearms. aed che defendant shail be entitled. as a muatce: of right. to a connnuance of the special heanng for a pened ofume up to days. If defendant's motion ts granted at 4 specs] hearing in the superior court. the people.tf theyhave additions) evidence tuistag 10 the mown aad not presented at the specral hesreng, shail heve the right to abow good cause af the ural why suck evidence was aot presented at the spercs] bearing and why the prior ruling at the special hearcag should not be binding. or tke people may setk appellate reveew as Provided in subdivision (0), unless ce court pour tothe time such renew cs sought hes diswassad the case purtmant to Section 31385. Uf the propesty or cridezce setend releases solely to 2 cuadenseamor Complaint, and the defendant mace s motion for the reture of property or the supprension olf evidence in the municipal cour or jestice court prior to trial, both the people and defendant shall have the right a appeel eny decision of that comrn relateng to that motion to the supenor court of the county 30 whach sock mfenor court is locased, in accordamee with the Californs Rules of Court provisions governing appeals from mwnctpel and jastice courts in crmemsal cane. If the poopie prosecute renew by appeal or writ to decision. of any review uberenf, in a felony or musdemeanor cane, it shall be binding wpon then. (&) Retense of defendem ponding reunmption cf provecdiogs ie trisS court. If the defendant's motion to retarn property or sapprens evidence ts granted ond the cane is Gisttaeed pursuant to Section 1385, or the people appeal ix a igiedemeanor cose pursuant to subdivision (j), the defendant shall be reicasad poramat to Section 1318 if be o abe is in custody and not returned to custody uses the procesdings are resamed in the trsal court snd he or the is lawfully ordered by the cour: to be recurmed to custody. if the dclendant's motion to return property or suppren evidence ts groaeed and the people file a peution for wrx of tnendate or protibition perwsaet to subdivision (0) o¢ 2 nouce of intention to file suck a petition. il qi | h l ef f fr ii ! | ;IIE [ Ht | Pe PENAL CODE $70 Part 2° evidence. In a mudemesnor case. the defendant shall te eativled 10 a Comunuance of up to 30 davs uf he of she untends to file a monon to return property or suppress endence and needs dus ume to prepare for ce specu heanmg on the mowos. in case of an appeal by the defendant in a cuxtemesnor case from the dermal of such moon, he of she dhall be enutled to teil os 0 matter of mght. sad. in the discretion of the trial or appellate court. may be released on his ot her own recognizance pursusat to Secnoo 1318. (m) Exclusive pretrisl comedy, review on appeal after conviction. The proceedings proveiad for in this secon, Secuon 871.5. Secuon 995. Secuon 1234, snd Secuon 1466 shal} corsucute the sole and eachusrve remedies prior 0 convicnos to test the unressonabieness of a search or acizure where the person making che motion for the cetars of property or the suppreosion of evidence is a defendant in a crimmal case snd the property or thing har been offered or will de offered 36 evidence agama: hin other. A defendant may soek further revrew of Ube validity of a seasch of seizure on appeed from a corvicnon tn a crimmal case the fees that such judgment of convicnon insorwihttanadizg Predscated upou « pies of guilty. Such review on sppeal may be obtemed by the defendant providing char at scame stage of the Proceedings prior to convicmon he or she has moved for the return of properry of the suppression of the evidence. (a) Motions en other greands; existing law ond procedure Nothing contamed im this section shell prohibis a person from making a wotion, oUwerwiee peruitind by isw, to retum property, brought on the ground that the property obtained is prosaciad by the frer speach and prea proveions ot the Federal ead State Constitutions mg im unis secmon shall be construed an aleering (i) tbe lew of standing tc raise the imue of aA unreasonable search ot scirure; (i) the trw relating to the status of the perana cuaducting the march or seizure: (il) the few relating to the burden of proof regarding the search or seizure; (iv) the lew relenag to the rmsounblencas of a search or setrure regardless of aay warrant which may have been utiliced: or (v) the procedure and lew relazing to 8 motion made purvusnt t@ Section 871.5 o¢ 995 of che procedures which may be utitiated after the granting or denial of such a motion. to) People’s petition for wnnndate or prohibition: aotice of iesvetion. Within 30 days after a defendent's motion i granted 8% & specie) hearty in the superior court. the peop’: mayfile a peauion for writ of mandate or pcobibition. serking appellate teview of the naling regerding the search or setxrcre motion. If che trial of a crimanal case is set for s date which is less chan 30 dsyt from use greacing of a defendant's motion st a sperisl bearing in the saperioe cori, the people, if they bave ant filed such = peticion sad wish to preserve their right to file such « Petition, shall file chesuperior court os of before the trial dete or within 10 deys efter the special bowing. whichever occurs lest, s. notios ofintancion to file such 2 petition aad shall serve 4 copy ofthe notice upon the defendant. (Added by Stats(9657, « 1537, § 1. Amanded by Ssats.1970. c. 1289, § 2: Sucl9M « 1441, § LS: Stami977, & 137. § 1; SearI92 2 AG i: Seats1/982, c. 1505, § 4: Seats. i986. «52. § 1: Seacx1907, c 422. § WR} Secnoe 2 of Samm. 1082. c. 623. provedes: “The emnandenant of Kacton 1534.5 of the Pusal Cade by this act don a0 cress say new grownds for exciasion of rvidunos chat did not eaist prior to ths act. The Legaietere unends thet the chengen made by thit act ste presedural only.” Secxion 2 of Seme.i906, c. 92, provider “The Loginkeatreherve Geclares that theaevendenent ta Seccics 1538.5 of the Pose) Code made in Secures: | of this ect dese not omens any mew Qrowade for ths excieenn of eviduun thet Gd at axes pror w the Mlacerve dane of thle oct. 11 2 the meenmt of the Legusiotute that tie changes made cA thei section are proeutural onty.~ 000083 ~ees mremReR see mime Re men 000084 i i 5 OR E ® @ oO Lee, GIL GARCETTI Lot UNTY DISTRICT ATTORNEY o--LOS ANGELES COUNTY DIST SBF?2 ENCLOSED IS A LEGISLATIVE PROPOSAL FROM THE OFFICE OF THE LOS ANGELES COUNTY DISTRICT ATTORNEY In response to a request from District Attorney Gil Garcetti, our deputies have submitted proposals for legislation. Enclosed is such a proposal which the District Attorney believes would be beneficial in addressing current crime issues. Included in the packet is a short summary ofthe legislative proposal and/or anintra-office communication in which the deputy explains the need for the legislation, and a draft of suggested language for the new or amendedstatute. In some cases there mayalso be copies of other related statutes, case law, or similar supporting documents. Thankyoufor your consideration ofthis legislative proposal. If you have questions aboutit, please call either of the following individuals: Sandra L. Buttitta, Chief Assistant District Attorney - Los Angeles County (213) 974-3505 Margaret Barreto-Morehouse Deputy District Attomey Special Assistant to Ms. Buttitta (213) 974-3500 el 18000 CRIMINAL COURTS BURDEVG 210 WEST TEMPLE STREET LOS ANGELES. CA 90012-3210 (213) 974-3501 000085 MOTIONS TO SUPPRESS EVIDENCE: Penal Code Section 1538.5: Amendsection {j) of statute to allow D.A. to dismiss and refile cases upon court's granting of suppression motion bzought in Superior Court, as D.A. is permitted to do upon granting of suppression motion brought in Municipal Court. Under current law D.A. is required to pursue appellate remedies when suppression motion is brought and granted in Superior Court. 000086 mmmeeom @ MEMORANDUM @ TO: ‘ SANDRA L. BUTTITTA Chief Assistant District Attorney FROM: — RICHARD J. CHRYSTIE ly Va Deputy District Attorney | Prosecution Support and Zraining Division SUBJECT: PROPOSED LEGISLATION RE 1538.5 MOTIONS DATE: DECEMBER28, 1992 This is in response to your memorandum requesting legislative proposals. A recent decision of the California Supreme Court, Superior Mat. News Slip Opinion Supplement, Dec. 21, 1992, censidered the issue of remedies available to the prosecution when a Penal Code section 1538.5 motion is granted and evidence is suppressed resulting in the dismissal of a felony case. This casefirst approved prior decisions holding that if a 1538.5 motion is granted and a felony dismissed in themunicipal at the preliminary hearing stage, the prosecution can simply refile the case and start all over again - among other remedies. However,in referenceto the facts of the Schlick caseitself, where the suppression motion was made and granted at the “special! hearing” in the superior pursuant to PC 1538.5, subd.(i), the Suprema Court held that the prosecutian cannot simply dismiss the case andrefile it and start all over again but must instead pursuetherelitigation or appellate procedures set forth in 1538.5 - evenif the case had not previously been dismissed and refiled. The Court cited as the basis of this hoiding the language of PC 1538.5 itself. The problem with this decision is that we can now suffer the permanent dismissal of a felony case simply because we did a pcorjob in presenting our evidence at the 1538.5 motion in the superior court. 1538.5, subd. (j) does permit us to seek to renew a 1538.5 motion first made at the special hearing in the superior court and present new evidence if we can show good cause asto why that evidence wasn't presentedat the first hearing. But very often the reason wedidn't do a goadjob atthefirst hearing was simply that due to the press of cases our deputy wasnot sufficiently prepared, or did not subpoena an essential witness, or an essential witness did not appear. These reasons would not be considered good cause to renew the hearing but do occurwith some frequency. 000087 To solve this problem, | suggest legislation allowing us to simply dismiss andrefile a falony case in the event a 1538.5 motion is granted in the superior court and the only way we can correctly present our evidenceat the 1538.5 motion is to start ail over again. Naturally, this is not something we would want to do often since by such dismissal and refiiing we are. in essence, admitting that we did an inexcusably poor job the first time. But since the law does penmit us to do this if we fose a 1538.5 motion at the preliminary hearing stage of a case, and sinceif the Schlick case standsasit is it will be the single exception to our right to refile a felony matter after suffering one dismissal, | think we are justified in asking for legislation allowing us to dismiss and refile after losing a 1538.5 motion in the superior court. The right to refile and relitigate the 1538.5 motion - evenif it means admitting we did a bad job thefirst time - is better than the ir,;edeemable dismissal of an important case. Here's my Suggested amendmentto 1538.5: The language appearing in underline should be inserted within subsection (j): “If defendant's motion is granted at the special hearing in the superior court, the people,if they have additional evidence relating to the mation and not presented at the specia! hearing, shall have the right to show good causeat the trial why such evidence was not presented at the special hearing and whythe priorruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (0), unless the court prior to the time such review is sought has dismissed the case pursuant to Section 1385. Ifthe hasb ndismissed if i1 le_may file w complaint or indictm j i rin mt proceeding, if iths property .. fetc].”hail not inding in an This new language parallels existing language within subsection (j) which permits the rafiling of a felony whenit is dismissed as a result of the granting of a 1538.5 motion at the preliminary hearing stage. Please call meif you wish further explanation of this proposal. c: Abram Weisbrot Curtis A. Hazell 000088 -_mannemi eee § 1538.5. Motion to return property or suppress evidence (a) Grounds. A defendant may move for the return of property of fo suppress es evidence eny tangble of intangible thing obtained as a result of a search or seizure on either of the following grounds: (i) The search o¢ seizure without a warrant was unreason- able. {2} The search o¢ seizure with e warrant was unreasonable because (i) the warrant is insufficient on its face, (ii) the property of evidence obtsined is not that descrbed in the warrant, Gil} there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federa] or state constitutional standards: (v) there was any other violation of federal or state constitutional standards. _ Ch) First bearing. When consisien: with the procedures set forth in this section and subject to the provisions of Section 170 through 170.6 ofthe Code ofCivil Procedure, the motion should first be heard by the magistrate who issued the search warrantif there is 3 warrant. (e) Evidence. . Whenever a:search of seizure motion is made ia the municipal, justice, of superior court as provided in this secuon, the judge or magistrate shail receive evidence oa any issue of fact necessary W determine the motion. 1238, or Section 1466 are utilized by the people. (e) Returs of property. If a search oc seizure motion is RUG Ut 8 teal. the property shall be returned upon order of the saotion oh pasted heoadene ta 3 f i t h iu i I i expired, whichever cocurs last. Uf the motion is preluminary bearing, the property shall be retumed upou order .of court after 10 days anless the property is acherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section $71.5, of Section 1233 are utilized: if they ere utilized, the property shall be retumed only MG after the conclusion of such proceedings, che property is no longer subject to lawful detention. i) Felony; motos upea filing information in superior court OF at preliminary bearing in manicipal or justice court. If the granted at @ § 2538.5 shall be restncted to evidence sought to be introduced by the people at the preluninaty beanng. Property of evidence relates to « misdemesnor complaint, the moves shall be made ta the municipal of justice coun before trial aad heard prior to ural at s rpecis] hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemesnor filed together with a felony, the crocedure provided for a felony in this section andSectiogs t138 end 1539 shail be applicable. (b) Motion at trial Uf. prioc to the trial of a felony ox misdemeanor. opportumicy for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the mght to make this motion during the coune of trial in the municipal, justice, oc superior court. heen renewal of motica at special) hearing review. If the property or evidence obtained relates to e [clay offense initiaued by complaint aod the defeadant was held to answer st the preliminary hearing, ov if the property or evidence relates to a felony offense initiated by indicernent, the defendant shail have tbe right to renew of make the motion in the superior court st a spacial hearing relating to the validity of the search or seizure which shall be heard prior to trial and st least [0 days after notice to the people unless the people are willing to waive 6 portion of this time. [f the offense was initiated by indictment or if tbe offense wes initisted by complaint and so motion was made a the preliminary hearing, the defendant shall have the Tight tw fully litigate the velidity of a search or sexture ow the basis of the evidence presented at & special hearing, Ef the motion was made at the preliminary bearing, unless otherwise agreed to by all parties, evidence presented at the special bearing shall be limited to the transcript of the preliminary bearing and to evidence which could not reasonably have been presented ai the preliminary hearing, except that the people may recall ‘witnesses who testified at the preliminary hearing. Ufthe people abject to the presentation of evidence at the special hearing on the grounds thar the evidence could reasonably have beer presented at the preiiminary hearing, the defendant shall be entitled to an in camem bearing to determine that sue. The superior coust shall base itsruling on all evidence presented at the specie! bearing ead on Ube transcript of the preliminary bearing, sod the findings of the magistrate shall.be binding on the superior court as to evidence or property nat affected by tvidence presented at the special bearing. Alter the special beasing ts Geld in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an txtursordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion st the special bearing. (D Relitigation of quectica after grunt cf wotion;, sew evidence, teview. Ufthe oc evidence relates to a felony offensr initiated by complaiot and the deferdant’s motion for the return of the property cy suppreation of the evidence at the preliminary hearing is pranted, and if the defendant is mai eid to amiwer af the prelimisary bearing, the people mayfile a new counplaint of seck an indictment afler the prelimiaary bearing, and the ruling sf the prioy bearing shall not be binding in any which the defendant was not held to answer, pursuant o Section 871.5. If the property or evidence relates to8 fcloay offense Property or evidence al the preliminary - hearing is granted, aad ifUhe defendant is held to answer et the FEYee ee andSt the preliminary heariag stall be bindingspon toenae‘upon notice to the defendant and the court in which the preliminary bearing was beki sad 000089 § 1538.5 upan the filing of an anformation, the people withsn 15 days after the prelummary bearing reqyest.in tbe superior court & special hearmng. in which case the valsdity of the search or sexzure shal! in etal comrt. If the defendant's. motion to return property or suppress evidence is granted and the care is dismissed pursuant to Section 1385, o¢ the people ‘appeal in s mindemesnor case pursuant to subdivision (), the defendant shall Se rekaced pursuant to Section 1328 if be or she is in custody and nor returned to custody unless the ings are resumed in tbe trial court end be or she is lawfully ordered by tbe court to be returned to custody. U the defendant’s motion to return property or suppress evidence im granted and the people file a pecition for writ of mandaleof prohibition pursaantto subdivision (0) or 8 notice of intentionto file such a the defendant shall be released pursusnt to Section 1318 unless (1) he ov she is charged with a capital offense in a case where the proof is evident and ube presumption great, or (2) be oc ahe is charged with a noncapital offense defined in Chapter 1 (commencing with Section 197) of Tide 8 of Part { and the court order: thet the defendant de discharged from actual custody upon beil U/) Stay; time for triak dimmiassl: contiomance; bail or releases. If dhe defendant's motion to. return property or proceedings tis section. Section 671.5, Section 1238. or Sacticn 1466 and, stipulation of the parties, pending the time for the -e1cept upon initiation f such proceedings. Upon the tannisatios of such proceedings, the defeadant shall bebroughtto trial as provided by Section 1362. and sobject to the provtions of Soctian 1342, whenever the people have sought and bees deniod appelisie PENAL CODE $70 Pert 2 evidence. {2 a mudemeanor cate, the defendant shall be enutled to & continuance of up to 30 days if he cr she wtends to file a mation to return property or suppress evidence and senda this time to prepare for the special hearing on the modo. Le case of an appeal by tbe defendant in a misdemeanor case from the denial of such monor. he or she shall be entitled to bail as a matter of right, and, ia the discrevon of the trial or appellate court, may be released on his oc her own recognizance pursuaat to Section 1318. (mu) Exclastve pretrial remedy; revizw on appes! efter coaviction. The proonndings provided for in this section, Section 671.5, Sectios 995, Section 123%, sad Section 1466 shall constitute ube tole and exclusive remedies prior to conviction to test the uareasonablencss of s search o¢ seizure where the person making the motion for the return of property of the suppression ofevidence is 2 defendant in a criminal case and the property or thing bes been offered or will be offered as evidence agains: him or her. A defendant may seek further review of the validity of a search of seizure on appeal from 6 cosviclon in a criminal case notwithstanding the fect that such judgment of conviction ic predicated upon a plea of guilty. Such review on appeal may be obtsined by the defendsnt providing that at some stage of the procesdings prior to coavi be or she has moved for the return of property or the suppression of the evidence. (a) Modtloes on other groesds; existing law end procedare Nothing contained in this section shall probibis a person from making a motion, otherwise permitad by law, to retare construed as altering () the law of standing to raise the issue of am vateasonable search of seizure, (Gi) the law celating to the status of the person conducting the search or seizore; (iif) the taw relating to the burden of proof regarding the search or seizure, (iv) the law relating to the reasouablesess of a search oc seizure regardices of any warrant which may have been utikzed: of (v) the procedare snd. law relating 10 a motion made pursuant to Section 871.5 or 995 or the procedures which may be initiated after the grauting or denial of such 4 motion. the crial of a criminal case is oct for 6 date which is leas days from the granting of a defendast's motion at Dearing tn the superior court, the people, if they have not filed such’s petition and wish to preserve their right to Gile such 0 petition, shall fle in the superior court on or before the trial date on within 10 days after the special hearing, whichever occurs last, a aotice of intention to file such a petition and shall serve « copy of the notice upon the defendant. (Added by Stats1967, ¢ 497,86 Amended by Stet{970 « 1289, § 2: Stas. 197 © 1448, 9 2S Satzi977, c 137, § 1: Suez1982 c 41S. § i: Stats1982. c. £505. § & Stare1906 « 32 $ I: Starx 1987, «. 228 § 92) Section 2 of State 982, 625, provides: . “Tee emendmens ofSection 1534.5 of che Pensl Code by this art dos Sactign 2 of Stats. 1986, ce82, provide: FeneCaneNeretyGectares thes the amendevent toSection 1536-3 of the Penal 000090 000091 of mazerpe) aad pretce courts in crimeémal cases, sox Califoras eee ¢ $238. Cres Redurences EXHIBIT B 10 11 SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES GENERAAL..........ssssussusssssssssssusssssessesisssssussssecsusssssssesssussssisssissiissisibesupsstibesitietiesisestiesieeesecceceeecec 1 A. SUPERVISING JUDGE — CRIMINAL oececcccscssssssssssesssssssessesestesessttesteceecceceeeeseeseeceeceececcc 1 B. CALENDAR CALLcicscssecsssccssesssssssecssessesesessescosssssssusssesusitssstivitesitsetecsicetcesteeeeeeeeeeeeccc 1 C. 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APPEARANCE OF COUNSEL wcecsccsscscsecsssesessssssssssssssesesstestessssessivsssecsecsuceccetecstsestesteeseecesees 5 B. ATTORNEY OF RECORDvoceecccssescsssssesoscsssssessssssstisssssssesetessisesstecesescesescesteceicesceecessesee 5 C. APPEARANCE OF DEFENDANT..ceeccoscssssssssssscsssscsessssessssesssssisesssssstisetserssssecserseseseseseceesee 5 D. REQUESTS FOR INTERPRETERS. .......-ssessscssessosssnsssusssesceststiseiessenntiantineennsseintt6 DOCUMENTS PRESENTEDFORFILING oo...ssssssessssseccsssssssosessestesssssisesssscstveuccserecssceseceecesceseeses6 A. SECURING OF DOCUMENTS..eeeccccsccscsccesecossessesssssestsssssivssessesucstesttecsuccuceissiteeseeeteseceseeceesee6 B. THICKNESS OF DOCUMENTS.oocsccsccccesscssecsssssssessscosssisesvisesvespestecssecseseeceeeeescesseebeesceceeceeee6 LAW AND MOTION.......ccsccssessssescsssecsescssecssssucssesssssusesisessssssusssssesessisestuvessisssssisssicsciccsscesseseeseeses6 A. DEPARTMENTS.ucscscssscsssseccsssssssecssscssssscssesecsssssssusssssssissssssssitessessissstsetcsicesuesssscesseesceseeeseses6 B. FILING ciccecccscccscsscssessecssecsssscsssucsarecesscsssssssussecssussssussstsssissssssssssssssssisessisssussivesescarceusceacesceseeees7 PROPOSED ORDERSoo....ccsscssscsssescsscssssssssssesscssssssussusessssesusstsssssisissississsibesupesucsicsiecsucsicsssceeseteesee 11 WRITS ooo ccccccccssesssssecsessscsusssssecesscsssecssectusssssssesessesssssesesssusessssisssusssesssssavssusssnsesussassecesecsieeseceeseecesee 12 A. CRIMINAL COURT CLERK’S OFFICEFILING.............sucsuestussssassesssessucsssecesscessssesessessses 12. B. 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NOTICE OF SEALING ORDER1.0... eeecsssscsecsecesssceseeesssesessnesseesssesssstsesesseeasseuseesesseasaesees21 G. UNSEALING OF RECORDS1.00... ccccscseesseseceesesceesesecseaeseessesensasseessesssssensesseesaesseaseeeseaegs21 RULE 1 B. (Eff. 1/01/11) (Eff. 1/01/11) Cc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES GENERAL SUPERVISING JUDGE — CRIMINAL The Criminal Division of the Superior Court shall be supervised by a judge appointed by the Presiding Judge and designated as the Supervising Judge — Criminal. CALENDAR CALL Except in Direct Calendar Departments, the Supervising Judge — Criminal or his/her designee shall call the Felony Master Trial Calendar, Felony Arraignment Calendar, Felony After-Arraignment Calendar and any other calendar he/she designates. These calendars shall be called in Department 24 at the Hall of Justice located at 190 West Hedding Street, San José, California. No probation violation matters, trailing sentencing matters,trailing misdemeanorcases, felonies still in limited jurisdiction or pretrial conference matters shall be set on the Master Trial Calendar, Arraignment Calendar or After Arraignment Calendar. At the arraignment on the information or indictment regardless of location or calendar type, the following dates mustbeset after a plea of not guilty, including a plea of not guilty by reason of insanity, unless otherwise ordered for good cause: (1) Trial, giving priority to a case entitled to it under law, and (2) Filing and service of motions and responsesandhearing thereon. At the arraignment on the information or indictment regardless of location or calendar type, plea of not guilty must be entered if a defendant represented by counsel fails to plead or demur; and an attorney may not appearspecially. MASTER TRIAL CALENDAR MOTIONS Motions to restore, motions to advance, uncontested motions to consolidate and other motions pertaining to the Felony Master Trial Calendar shall be set and heard in the departmentof the Supervising Judge — Criminal. MOTIONS TO CONSOLIDATE Contested motions to consolidate shall be heard in the appropriate Law and Motion Department. RULE1 -—con’t E. (Eff. 1/01/06) (Eff. 1/01/06) (Eff. 7/26/00) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES CALENDAR SCHEDULE (1) (2) (3) HALL OF JUSTICE COURTHOUSE The Felony Master Trial Calendar shall be called at 8:30 a.m. on Monday. The Felony Arraignment Calendar shall be called on Monday at 1:30 p.m. If Mondayis a holiday, these two calendars shall be called on Tuesday at the above times. The Felony After-Arraignment Calendar shall be called at 1:30 p.m. on Wednesday. The deadline to place matters on the Felony After-Arraignment Calendar is noon on the Thursday immediately before the calendaris called, except for motions pursuant to Penal Code § 1050 which are governed by Rule 2. OTHER COURTHOUSES Specific calendars for other courthouses will be as specified in the “Santa Clara County Superior Court Protocol” on file in the Clerk’s Office of each courthouse and available in each courtroom in thesefacilities. DRUG COURT CALENDARS a. The Presiding Judge shall assign to the Criminal Division of the Superior Court a sufficient number of judges to serve at a designated courthouse to process all felony drug cases. Judgesat this facility shall conduct all felony arraignments, pre-trial proceedings, settlement conferences, pleas and sentencing proceedings as well as the assignment of dates for preliminary examinations. b. The establishment of the Drug Court calendars is based upon the following statements: (1) The Court receives a substantial number of narcotic cases each yearthat are recognized as distinct subject within the Criminal Division. (2) The establishment of the drug court calendars recognizes the need to incorporate substance abuse treatment programs where appropriate with criminal case processing in a timely and efficient manner. (3) The drug treatment court as approved in September of 1995 by the judges of the former Municipal and Superior Courts of Santa Clara County is recognized as a componentofthe Drug court calendars. RULEt — con’t SUPERIOR COURT OF CALIFORNIA (Eff. 7/26/00) (Eff. 1/1/08) F. (Eff. 1/01/11) (Eff. 1/01/11) (Eff. 1/01/11) G. COUNTY OF SANTA CLARA CRIMINAL RULES c. Schedules for the Drug Court calendars will be specified in the Santa Clara County Superior Court Protocol on file in the Clerk’s Office. d. Criteria for the assignment of cases to the Drug Court calendars, including the Drug Treatment Court, shall be specified in the Santa Clara County Superior Court Protocol onfile in the Clerk’s Office. (4) DOMESTIC VIOLENCE CALENDARS The Presiding Judge shall assign to the Criminal Division of the Superior Court a sufficient number of judges to preside over felony and misdemeanor domestic violence cases in the Domestic Violence Court. The Domestic Violence Court will hear felony and misdemeanor domestic violence cases from arraignment through disposition and sentencing, and will hold hearings to monitor treatment progress and probation compliance. READINESS CONFERENCE Except for those cases assigned to one judge for all purposes, a Readiness Conference for felony cases on the Master Trial Calendar shall be conducted at 9:00 a.m. on the judicial day immediately proceeding the day the Master Trial Calendar is called. The Readiness Conference shall be held in the chambers of the Supervising Judge — Criminal. A representative of the District Attorney’s Office, Public Defender’s Office, Alternative Defender’s Office, and Independent Defender’s Office is required to be present. Counsel is required to notify the Court of their trial readiness status at the Readiness Conference. This notification shall be made as follows: (1) Representatives of the various law offices mentioned aboveshall notify the Supervising Judge - Criminal of the status of those attorneys in their office. Trial Counsel is therefore expected to communicate their status to those representatives in advance of the Conference. (2) All counsel shall notify the Criminal Calendar Secretary of their trial readiness status no later than 3:30 p.m. on the day before the Readiness Conference. MISDEMEANORS -— TRIALS AND PRETRIALS (1) All cases, whether in-custody or out-of-custody, shall be set for a mandatory pretrial conference before being set on a jury trial calendar. (2) The presence of counsel on all sides shall be mandatory at the pretrial conference. RULE 1 - con’t SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES (3) All discovery andall pretrial motions shall be completed before the matter is set fortrial. (Eff. 7/01/02) H. COURTHOUSES Adult criminal matters are filed and heard in the courthouses indicated below. Any case may be assigned to another courthouse for discussion, hearing and/or trial at the discretion of the Supervising - Criminal and/or Presiding Judge. Ifa Court employee or deputy sheriff working at a facility, or a memberofhis or her family, is a party to a case, the clerk or Supervising Judge - Criminal Division shall transfer the case to anotherfacility, unless a statute specifies the location for the initial appearance andthe party has not yet attended that initial appearance. (Eff. 1/01/11) (1) HALL OF JUSTICE COURTHOUSE All misdemeanor, felony, and Municipal Code matters arising within Campbell, Los Gatos, Milpitas, Monte Sereno, San José, Santa Clara, and Saratoga and adjacent unincorporated areas are filed and heard in this courthouse, except drug offenses that are heard in the Terraine Courthouse. (Eff. 1/01/06) (2) TERRAINE COURTHOUSE No criminal matters are filed in this Courthouse. All felony and misdemeanor drug offenses that would otherwise be heard in the Hall of Justice are heard in this Courthouse, except misdemeanor arraignments andtrials. (Eff. 7/01/12) (3) SOUTH COUNTY COURTHOUSE All misdemeanor, felony, and Municipal Code matters designated in the Criminal Local Bail Schedule arising in Gilroy, Morgan. Hill, and San Martin and adjacent unincorporated areas are filed and heard in this courthouse. (Eff 11/24/14) (4) PALO ALTO COURTHOUSE All misdemeanor, felony, and Municipal Code matters designated in the Criminal Local Bail Schedule arising within Cupertino, Los Altos, Los Altos Hills, Mountain View, Sunnyvale and Palo Alto and adjacent unincorporated areasare filed in this courthouse. (5) SANTA CLARACOURTHOUSE (Eff. 11/24/14) All traffic infractions and Municipal Code matters designated in the Traffic Local Bail Schedule arising in the County of Santa Clara are heard in this courthouse. (Eff. 11/24/14) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES RULE 2 CONTINUANCES All requests to continue the trial of matters on the Master Trial Calendar shall only be heard by the Supervising Judge — Criminal on the After-Arraignment Calendar. Unless good cause is shown, requests to continue shall be heard on the After Arraignment Calendar before the matter’s appearance on the Master Calendar. Unless good cause is shown, the deadline for placing Penal Code § 1050 requests on the After Arraignment calendar is noon on the Monday immediately preceding the calling of that After Arraignment Calendar. Requests for continuances in the trial department shall immediately be referred back to the department of the judge supervising the Master Trial Calendar. (Eff. 1/01/11) RULE 3 APPEARANCES A. APPEARANCE OF COUNSEL (1) Counsel must appear at all hearings, unless other counsels appear for them or prior arrangements are made with the Court. (2) Counsel shall advise the Court of any conflicting appearance in the court of another county prior to requesting or agreeing to any hearing date. Furthermore, counsel shall not request or agree to any hearing date in another county that conflicts with a hearing date previously set by the Court. (Eff. 7/26/00) B. ATTORNEY OF RECORD In compliance with California Penal Code § 987.1, all counsel who represented a defendant at the preliminary examination or at the time the defendant was otherwise held to answer shall appear and represent the defendant at the time of arraignmenton the Information. Any request to be relieved as attorney of record should be madeat this first appearance. (Eff. 7/26/00) C. APPEARANCEOF DEFENDANT (1) Consistent with California Penal Code § 977, in felony cases, the defendant must be present each time his/her matter is called in Court, including when matters are submitted, unless a written waiveris onfile. Absent a written waiver of appearance, failure of the defendant to appear will result in the issuance of a bench warrant. A written waiver of appearance shall not relieve a defendant from appearing at the Arraignment, Preliminary Examination, at the time of Plea, Master Trial Calendar (MTC), motions under Penal Code § 1050, and Sentencing. (Eff. 1/01/11) RULE 3 - con’t SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES (2) In misdemeanor cases, defendants may appear in person or by counsel. However, a defendant must be present in Court if specifically ordered by the Court as allowed by Penal Code § 977 or required by statute. In misdemeanor domestic violence cases as defined by Penal Code § 977(a)(2), the defendant shall be present for arraignment and sentencing, and at any time during the proceedings whenordered by the Court for the purpose of being informed of the conditions of a protective order issued pursuantto § 136.2. (Eff. 1/01/11) D. REQUESTS FOR INTERPRETERS Prosecution and defense requests for interpreters for trial, preliminary hearings, motions, or any other appearances, must be made in open court at the time these matters are set. | RULE 4 DOCUMENTSPRESENTED FORFILING A. SECURING OF DOCUMENTS All papers and documents presented for filing shall have two standard pre- punched holes approximately 2 %4” on center apart centered approximately 5/8” from the top of the paper or document. B. THICKNESS OF DOCUMENTS All papers and documentspresented for filing shall not exceed 1 %” in thickness, unless approved by the Judge in whose Court the matter is to be heard. RULE 5 LAW AND MOTION A. DEPARTMENTS — Law and Motion matters shall be heard as follows: (J) MISDEMEANOR CASES -All motions shall be heard in the pretrial department to which that misdemeanorcaseis assigned. (2) FELONY DRUG/NARCOTIC CASES (NON-THREE STRIKE CASES) All motions shall be heardby the Judge specifically assigned to hear such motions. RULE 5 - con’t (Eff. 1/01/06) B. (Eff. 1/26/11) (Eff. 1/01/06) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES (3) DOMESTIC VIOLENCE CASES All motions shall be heard in the pretrial department to which that domestic violence case is assigned. (4) OTHER MOTIONS Motions in all other cases shall be heard by the Judge assigned to the Criminal Law and Motion departmentin the designated courthouse. FILING Unless indicated otherwise, the following shall apply to ALL law and motion matters: (1) COURT FILING (2) (3) (4) The party filing any motion paper mustfile the original in the Criminal Court Clerk’s office in which the case is to be heard and on general jurisdiction matters provide a courtesy copy for the research attorney/law clerk of the Court assigned to hear the matter. SERVICE OF COPIES A copy of ali moving and responding papers must be served upon opposing counsel, co-counsel and counsel for all co-defendants the same day thatthe originals are filed, unless previously served. Service upon the District Attorney and Public Defender can be accomplished by depositing the documents in those offices’ mail boxes located in the Criminal Court Clerk’s office at the Hall of Justice. LAST DAY TO FILE The last day to file and hear motions shall be set or can be obtained at the time of arraignment in Superior Court, unless otherwise agreed to by the - Court hearing the motion. (See also Criminal Rule 5(B) (4) below.) UNLESS OTHERWISE ORDERED BY THE COURT a. All motions and applications, together with supporting papers, documents and Points and Authorities, must be filed with the Criminal Court clerk in the appropriate courthouse no later than 15 full calendar days prior to the date set for hearing. This requirement applies except where inconsistent with a state rule of court or statute. (See e.g. CCP § 1005 requiring 16 court days for a Pitchess/EC § 1043 motion.) RULE 5 - con’t (Eff. 1/01/11) (Eff. 1/01/11) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES Unless waived by the Court, or unless the party that would respond to the motion plans on concedingit, a written opposition, together with supporting papers, documents, and Points and Authorities mustbe filed. All written responses, together with supporting papers, documents and Points and Authorities, must be filed with the Criminal Court clerk no later than five full Court days prior to the date set for hearing. The reply mustbe filed two Court days prior to the date set for the hearing. Failure of the moving or responding party to comply herewith shall be sufficient grounds for the Court to refuse to consider the matters contained in such moving or responding papers, as the case may be. Except for limited jurisdiction matters, any motion to be filed containing a requested hearing date on or after the trial date must have the approval initials of the Supervising Judge — Criminal or his/her designee. (5) CONTINUANCES AND RE-SETTING, WITHDRAWALOF TIME WAIVERS a. (Eff, 1/01/11) (Eff. 1/01/11) Except in unusual or exigent circumstances, any party intending to request a continuance or not to.proceed in any matter set for hearing shall promptly so inform all other counsel and THEN inform the Court assigned to hear the motion. This notification must be at least two court days preceding the hearing. It is counsel’s responsibility in felony cases to place the case on the After-Arraignment Calendar if continuing the motion will require re-setting the trial date. Continuing the trial date will not be allowed in the Law and Motion department. (See 2, supra.) The Court shall have complete discretion concerning continuances, including the authority to deny any continuance andto rule in the absence of counsel, or to order the matter off calendar, notwithstanding anystipulation of counsel. If a case has not been set for trial, withdrawal of a defendant’s previously entered time waiver of speedy trial shall be by written Notice of Withdrawal of Time waiver filed in the department of the judge supervising the Master Trial Calendar. In the alternative, the withdrawal of time waiver may be madeorally on the record by the defendant or his counsel in that department. If the case has been set for trial, the written Notice of Time waiver shall be filed or the oral withdrawal of time waiver shall be made, in the department where the causeis setfortrial. RULE 5 - con’t (Eff. 1/01/11) (Eff. 7/01/02) (6) (7) (8) (9) (10) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES REQUESTS FOR ORDERS SHORTENING TIME All requests for Orders Shortening Timeshall be signed only by the Judge hearing the motionorhis/her designee. NOTICE OF MOTION AND RESPONSE a. Except for motions brought pursuant to California Penal Code § 995, if the motion is to be submitted in whole or in part on the transcript of the preliminary examination, or the transcript of any prior proceeding, the Notice of Motion and/or the Response must so state. b. In any Motion brought pursuant to California Penal Code § 1538.5() that is to be presented de novo, notice of this fact must also be set out on the first page of the moving and responding papers. c. Failure to comply with any portion of this Criminal Rule 5(B) shall be sufficient cause for the Court to refuse to consider any transcript of a prior proceeding, allow the calling of additional witnesses or to allow a de novo hearing. MOTIONS TO SUPPRESS EVIDENCE The notice of a motion brought pursuant to California Penal Code § 1538.5 shall describe and list the evidence which is the subject of the motion to suppress and shall be served with a Memorandum of Points and Authorities. ORAL TESTIMONY In all matters, oral testimony shall not be permitted unless the Court orders otherwise, except de novo hearings brought pursuant to California Penal Code § 1538.5. The Court shall have complete discretion as to the necessity for, nature and extent of oral argument. Notice of intent to call witnesses must be specifically set out on the first page of the moving and/or responding papers. EX PARTE MATTERS Except as otherwise provided by law, for any application involving ex parte relief, reasonable advance notice must be given to opposing counsel, co-counsel and counsel for co-defendants. The presence of counsel or the applicant shall be required in any such matter. RULE 5- con’t (Eff. 7/01/08) (11) (12) (13) (14) (15) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES COMPLIANCE WITH RULES OF COURT a. All papers filed in Law and Motion matters, and all proceedings thereunder, shall be in accordance with the applicable statutes, California Rules of Court and these Criminal Court Rules. b. A mere citing of code sections which authorize the filing of a motion is not in compliance with the California Rules of Court or these Rules. Except as otherwise authorized by statute or Rule of Court, application for anyrelief, or any opposition to relief sought, shall be supported by a MemorandumofPoints and Authorities. c. All case citations must include the official report volume, page number, and year of decision. d. In any matter where a party is relying on out-of-state or federal authority, a copy of the entire authority must be provided. e. Unless prior authorization is obtained from the Law and Motion Judge, all Memoranda of Points and Authorities shall be no longer than 15 pages. MEMORANDUM OFPOINTS AND AUTHORITIES. A Memorandum of Points and Authorities shall contain a concise statementof facts, a concise statement of the law, evidence and arguments relied upon, a discussion of the statutes, cases and textbooks cited in support of the position advanced. When a party intends to rely on a transcript, the page numberofthe transcript must be cited. MOTION TO JOIN Any party seeking to join in any motion shall set out the relevant facts and law as it relates to that joining party in particular. ESTIMATE OF TIME All moving, responding and joining papers must set out an accurate time estimate onthe first page. If the time estimate is in excess of two hours or cannot be heard on a regular Law and Motion calendar, the motion may be reset on the Master Trial Calendar. SEARCH WARRANTS Whena defendantis seeking to quash or traverse a search warrant, a copy of the search warrant affidavit must be provided and attached to the moving papers. 10 RULE 5- con’t SUPERIOR COURT OF CALIFORNIA (Eff. 7/01/12) RULE6 (Eff. 1/01/10) COUNTY OF SANTA CLARA CRIMINAL RULES (16) MOTIONS FOR REINSTATEMENT When moving to reinstate a complaint, the prosecuting attorney must provide a copy ofthe preliminary examinationtranscript. (17) POST-TRIAL MOTIONS a. Post-trial motions, motions for new trial and other matters related to contested cases shall be set and heard in the department where the Judge whoheard the matter is currently sitting. The time and date of the hearing shall be set only by the Judge of such department. b. In the event that the original trial Judge is retired or no longer available, matters in Criminal Rule 5(B) (17) (a) will be assigned out for hearing by the Supervising Judge — Criminal. (18) SENTENCE MODIFICATION Motions for. modification of sentence shall be heard as set out in Criminal Rule 5 (B) (17) (a), supra. For all requests for modification of sentence, notice must be sent to the District Attorney’s Office as well as the Adult Probation Department (in cases in which formal probation has been granted) before such request will be considered or calendared for hearing. Proof of such notice must be attached to the original requestfiled with the Court. Failure to do so will result in the request being treated as an improper exparte communication with the Court and will be discarded. (19) USE OF JUVENILE RECORDS Attorneys or defendants who are involvedin a criminal proceeding in the Superior Court of California, County of Santa Clara, and who seek juvenile records for use in the pending criminal action shall, in addition to filing a W&I Code § 827 Petition in the Juvenile Court, concurrently file a Declaration of Filing of Juvenile Court 827 Petition in the criminal case (Attachment CR-6082). PROPOSED ORDERS Any proposed order submitted to the Court for signature must contain a footer with the title of the order on every page, including the signature page,unlessit is a Judicial Council form. In addition, the Court signature and date lines must not be on a page by themselves; the signature page must contain some text of the order. 1] SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES RULE 7 WRITS A. CRIMINAL COURT CLERK’S OFFICE FILING Petitions for writs such as Writs of Habeas Corpus, Writs of Mandate or Writs of Coram Nobis in criminal cases shall be filed in the Criminal Division at the Hall of Justice. (Eff. 7/01/11) B. CIVIL COURT CLERK’S OFFICE FILING (1) Petitions for Writs of Mandate and/or Prohibition shall be filed in the Civil Division of the Downtown Superior Courthouse located at 191 North First Street, San José, California. (Eff.1/01/06) (2) Petitions for Writs of Habeas Corpus Re: Quarantine Detention shall be filed in the Probate Division of the Downtown Superior Courthouse located at 191 North First Street, San José, California. (Eff. 7/01/11) RULE 8 SUBPOENAS DUCES TECUM All subpoenas duces tecum in criminal cases must comply with Penal Code § 1326 and Evidence Code § 1560, and when applicable CCP § 1985.3, and shall be returnable to the court. In the event materials which are the subject of a subpoenaare received by a party, an attorney, or an attorney’s agent or investigator directly from the subpoenaed party, the person receiving such materials shall immediately lodge such materials with the clerk of the court. The materials shall not be opened, reviewed or copied by the recipient without a prior court order. (Eff, 7/01/05) RULE9 REQUEST FOR COPY/TRANSCRIPT OF ELECTRONIC SOUND RECORDING FOR RECORD ON APPEAL, WRITS, OR OTHER HEARINGS FOR MISDEMEANORSORINFRACTIONS (1) The courthouse supervisor or his/her designee shall retain custody of the original sound recording, unless ordered to deliver it to the reviewing court. Tapes shall be underthe control of the Court Services Manager. (Eff. 1/01/08) (2) The Court Services Manager or his/her designee shall make the original sound recording available to the parties and counsel for listening in courthouses during normal business hours within 72 hours of submission of a request to the Court Services Manager. (Eff. 1/01/08) 12 RULE 9 — con’t (Eff. 1/01/08) (Eff. 1/01/08) (Eff. 1/01/08) (Eff. 1/01/08) (Eff. 1/01/08) (Eff. 1/01/08) (Eff. 1/01/08) (3) (4) (5) (6) (7) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES At the time of filing of a Notice of Appeal, Notice of Petition for Writ or Notice of Motion, or within 10 days of the filing of such notice, counsel for the appellant, petitioner or moving party (or by the party if unrepresented by counsel), shall advise the Court if there is a request for a copy of the recording or its transcript. Such request shall be made in writing to the clerk at the courthouse in which the appeal/petition/notice is filed. Courthouse staff shall inform the requesting party of the current cost per recording and collect the fees at the time the request is submitted. Within 48 hours of receipt of the request, the clerk of the courthouse shall forward the request to the Court Services Managerorhis/her designee. Whena request is made for a copy of the recording of the proceedings, the following shall apply: a. Within 10 days of receipt of the request, the Court Services Manageror his/her designee shall prepare and label one copy of the original sound recording for each requesting party. The copies shall be playable at 1 7/8” per second. b. The Court Services Manager or his/her designee shall promptly contact the appropriate parties to arrange for them to pick up their copy of the recording. c. In all cases involving appeals, the applicable California Rules of Court shall then apply regarding the settlement of a statement of proceedings. d. In cases involving appeals, counsel for the moving party shall serve opposing counsel or party, if unrepresented, with either a transcript or a copy of the recording requested within 10 days of receipt of the copy of the recording. When a request is madefor-a transcript of the proceedings uponfiling of Notice of Appeal (CR-142) the following shall apply: a. Upon filing Notice of Appeal (Judicial Council form CR-142) the Traffic Appeals Clerk shall notify Court Services that appellant has selected paragraph 4(b) entitled “Transcript from Official Electronic Recording” in form CR-142. b. Court Services shall determine length and cost of transcript from official recording. Cc. Court Services shall notify appellant of the estimated costs for the transcript and all necessary copies (in the same manneras a court 13 RULE 9 - con’t (Eff. 1/01/11) RULE10 A. (Eff. 7/01/02) RULE 11 (Eff. 1/01/10) A. (Eff. 1/01/10) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES reporter would and with the same time constraints as in the appeal process). d. After receipt of appellant’s payment at the facility of their appeal, the Traffic Appeals Clerk will notify Court Services to prepare transcript. e. The Court Services Manager or his/her designee shall promptly send a copy of the original recording to the transcriptionist. f. In appeal proceedings, the California Rules of Court shall apply. TRIAL JURORS Release of Juror Information shal! be allowed only as provided in CCP § 237. SPECIAL CONSIDERATION IN DOMESTIC VIOLENCE CASES CRIMINAL COURT PROCEDURE ON PROTECTIVE ORDERS- COURT COMMUNICATIONS (1) (2) When the Criminal Court issues Criminal Protective Orders protecting victims, the Criminal Court shall inquire of the defendant/restrained person whether there are any children of the relationship between the defendant/restrained person and the victim/protected person, and whether there are any court orders for custody/visitation for those children. If there are children, the Criminal Court shall consider whether peaceful contact with the victim/protected person should be allowed for the purpose of allowing defendant/restrained person to visit the children. The Court shall give the defendant/restrained person the Restrained Person Packet concerning his or her rights to request custody and/or visitation through the Family or Juvenile Court, along with directions to the Self-Service Center. The Criminal Court shall also inquire of the defendant/restrained person whether there are any existing protective/restraining orders involving the defendant/restrained person, the victim/protected person, and/or the children. Subject to available resources, the Court shall examine available databases for existing protective or restraining orders before issuing permanent Criminal Protective Orders. When the Criminal Court issues Criminal Protective Orders which list the defendant/restrained person’s minor children as protected persons, the Criminal Court shall fax a copy of its Order to the Supervising Judge of the Family Court, unless the Criminal Court is aware that a Juvenile or Probate Court proceeding concerning the family is pending, in which case a copy of the order shall be faxed to the applicable Juvenile or Probate Court. 14 RULE11 -—con’t B. (Eff. 1/01/10) (Eff. 1/01/06) (Eff. 1/01/06) (Eff. 1/01/07) (Eff. 1/01/07) (Eff. 1/01/07) (Eff. 1/01/07) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES MODIFICATION OF CRIMINAL PROTECTIVE ORDERS — COURT COMMUNICATIONS (1) ~=Any Court responsible for issuing custody or visitation orders involving (2) (3) minor children of a defendant/restrained person subject to a Criminal Protective Order may modify the Criminal Protective Order if all of the following circumstancesaresatisfied: a. Both the defendant/restrained person and the victim/protected person are subject to the jurisdiction of the Family, Juvenile, or Probate Court, and both parties are present before the Court. b. The defendant/restrained person is on probation (formal or court) for a domestic violence offense in Santa Clara County or is currently charged with a domestic violence related offense in Santa Clara County and a Criminal Protective Order has issued. c. The Family, Juvenile, or Probate Court identifies a Criminal Protective Order issued against the defendant, which is. inconsistent with a proposed Family, Juvenile, or Probate Court Order, such that the Family, Juvenile, or Probate Order is/will be more restrictive than the Criminal Protective Order or there is a proposed custody or visitation order which requires recognition in the Criminal Protective Order (Boxes 13 or 14 or both on the CriminalProtective Order form). d. The defendant signs an appropriate waiver of rights form or enters a waiverofrights on the record. e. Both the. victim/protected person and the defendant/restrained person agree that the Criminal Protective Order may be modified to a morerestrictive order or to add Box 13 or 14 or both to the CriminalProtective Order. The Family, Juvenile, or Probate Court may not modify existing Criminal Protective Orders to be less restrictive. Only if children are not listed as protected persons, a modification of the Criminal Protective Order to check Box 13 or 14 or both shall not be consideredless restrictive. The Family, Juvenile, or Probate Court may on its own motion or at the request of a defendant, protected person or other interested party, calendar a hearing before the Criminal Court on the issue of whether a Criminal Protective Order should be modified. The Family, Juvenile, or Probate Court shall provide the Criminal Court with copies of existing or proposed Orders relating to the matter. Notice of the hearing will be providedto all counsel and parties. 15 RULE11 -con’t SUPERIOR COURT OF CALIFORNIA (Eff. 1/01/10) D. (Eff. 1/01/11) RULE12 (Eff. 1/01/08) COUNTY OF SANTA CLARA CRIMINAL RULES CONSIDERATIONS FOR CHILDREN EXPOSED TO DOMESTIC VIOLENCE. (1) In addition to determining the names and birthdays of any children, the Court will make a determination from competent evidence whether any child was exposed to domestic violence. If any child has been exposed to domestic violence, the Court will distribute to a responsible adult a packet of information entitled “Therapeutic Services for Children Exposed to Domestic Violence,” and will assist in making outside services available as early as possible in the criminal proceedings. (2) Where appropriate, the Court will order restitution to pay for the services, and utilize any other service available to the Court to carry out the Court’s intention to connect children with such services. PROPERTY REMOVAL ORDERS In cases where the Court allows the Restrained Person to remove his/her “necessary personal property” from the Protected Person’s residence as a one time exception to the Protective Order, Attachment CR-6072 (Property Removal Orders) shall be completed by and filed by the Court and each party shall be provided with onecertified copy of the same. TRAFFIC DIVISION — TRIAL BY DECLARATION The Court adopts the trial by declaration process defined in Vehicle Code § 40902. Additionally, pursuant to Vehicle Code § 40903, any person whofails to appear as provided by law may be deemed to have elected to have trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the code. In eligible: cases the Court will conductthetrial in absentia andit will be adjudicated on the basis of the notice to appear issued pursuant to Vehicle Code § 40500 and any business record or receipt, sworn declaration of the arresting officer, or written statement or letter signed by the defendant that is in the file at the timethe trial by declaration is conducted. If there is a guilty finding, the conviction shall be reported to the DMV andthe defendant notified of the disposition of the case, the amount of imposed fines and fees, and the defendant’s right to request a trial de novo within a specified period of time. If there is no timely request for a trial de novo and the fines and fees are not paid by the due date, the case will proceed to civil assessment pursuant to Penal Code § 1214.1. Additionally, the DMV will be notified of the failure to pay pursuant to. Vehicle Code § 40509.5(b), which can result in a suspension of the defendant’s driver’s license pursuant to Vehicle Code § 13365(a) (2) until all obligations to the Court are satisfied. 16 RULE13 A. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES ANCILLARY DEFENSE EXPENSES SCOPE This rule states the requirements for the payment under Penal Code § 987.2 of the necessary expenses that are incurred by appointed or retained counsel, or self- represented defendants,for the defense of persons whoarenotable to pay for the costs themselves. This rule will refer to these necessary expenses as “ancillary defense expenses.” All funds expended under Penal Code § 987.2 for ancillary defense expenses must have prior approval by Court order. Funds approvedfor a specific purpose, moreover, may not be expended for another use without prior Court approval. REQUIRED SUBMISSIONS All initial applications for the authorization of ancillary defense expenses shall be submitted by ex parte motion to the clerk of the Criminal Division Supervising Judge. The application shall be accompanied by: (1) a declaration of defendant’s indigence, signed under penalty of perjury; and (2) a declaration with the information described in subdivision C below. REQUIRED DECLARATION All applications for ancillary defense expenses shall be supported by a declaration setting forth: (1) a summary of the circumstances of the charged offense or facts that demonstrates why the funding of ancillary defense expenses is necessary in the interests ofjustice; (2) the status of the case; (3) the specific purpose for the funds, including the nature of the services to be rendered and an explanation why those services are reasonably necessary for.the defense of the case; and (4) the nameandtitle of each appointed service provider (investigator, expert, or other) for whom funds are being sought, the hourly rate and maximum amount expected to be charged for the service, travel-related expenses other than mileage, and any other spécial expenses. If a self-represented defendant has not suggested a particular investigator, the Court will select one from therotational investigator list. Billing rates for all investigators shall be no more than $60.00 per hour, and the initial authorization for 17 RULE 13 -con’t SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES | investigators shall be limited to $1,500.00 (including hourly fees and any mileage at prevailing rates as set by the Court). Billing rates for legal runnersshall be no more than $15.00 per hour, and the initial authorization for legal runners shall be limited to $250.00. Legal runner services, when approved by the Court, are limited to photocopying, and transporting materials, orders, and motions. Visits and phone calls: to the County’s detention centers must be associated with an allowable billable activity, and will be subject to the Court’s discretion. D. TRAVEL EXPENSES (1) (2) No funds may be expended for overnight travel by investigators, experts, or others without prior Court approval. Pre-approved hourly investigation expenses may not be applied to overnight or airline travel costs unless expressly designated by the Court for travel after an appropriate request. Applications that include a request for travel expenses to interview witnesses must contain, in addition to the requirements above, a declaration setting forth: (a) the relevance and materiality of the witness’s proposed testimony; (b) an explanation why a telephone interview or an interview conducted through the Internet or other forms of electronic communication would not suffice instead of a face-to-face interview; (c) an explanation why it would not be practical to utilize the services of an investigator in the area where the witness lives to conduct the interview; and (d) whether it would be feasible to fly the witness to the San Jose airport for an interview, with a return flight the same day, to avoid the expense of overnighttravel for the investigator. (e) The applicant should endeavor to secure the lowest possible airfare. E. EXPENSES FOR MEDICAL AND MENTAL HEALTH PROFESSIONALS On initial applications for authorizing expenses for doctors, psychologists, psychiatrists, and similar experts, the maximum amount allowed by the Court will be an amountsufficient to procure an initial written report from the expert. This report should describe the need, if any, for further services at an approved rate. The defense must endeavor to negotiate the lowest hourly rate. If the defense retains an expert from outside theBay Area, the declaration shall explain in detail whylocal experts could not be employed to provide similar services. Expenses 18 RULE13 - con’t SUPERIOR COURT OF CALIFORNIA ~ (EfE 7/1/13) COUNTY OF SANTA CLARA CRIMINAL RULES for supplemental reports by experts or investigators may not be paid by the Court without prior Court approval. ADDITIONAL FUNDING. After the initial funding approved by the declaration described in subsection C above has been exhausted, no additional work may be performed or compensated without first obtaining Court approval by submitting a supplemental funding request under this subsection. Each application for additional funding for a previously authorized service provider (investigator, expert, or other) shall state, in the heading of the pleading, thatit is a supplemental request, and shall include a declaration setting forth: (1) the date and amount of previous funding authorizations for the service provider; (2) the amountofany billings for services completed by the service provider; (3) the remaining balance from funds previously authorized for the service provider; and (4) a detailed description of the services remaining to be performed. Any additional request for the services of an expert must be accompanied by a report or declaration of the expert explaining the need for the additional services. CLAIMS FOR THE PAYMENT OF ANCILLARY DEFENSE EXPENSES Claims for the payment of ancillary defense expenses must have prior Court authorization as described above; without prior authorization, claims will not be paid. Claims for payment of ancillary defense expenses shall be submitted to the Court within 60 days of the completion of the approved services. Claims must specify the services performed, with dates and hours of service itemized. When travel or mileage is claimed, the locations must be specified. Claims shall be accompanied by all supporting documentation, including original invoices or receipts, and authorizing Court orders. 19 RULE 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES PROTOCOL FOR SEALING OF RECORDS-CRIMINAL DIVISION In proceedings for requests for the sealing of Court records in the Criminal Division, California Rules of Court, Rules 2.550 and 2.551 et seq. shall apply. All judicial officers have the responsibility and authority to decide sealing requests. The Supervising Judge of the Criminal. Division may designate the judges in each Criminal Courthouse to hear sealing requests in accordance with this protocol. A. COURT RECORDS PRESUMEDTO BE OPEN Unless confidentiality is required by law, Court records are presumedto be open. (California Rules of Court, Rule 2.550(c).) B. DEFINITIONS (1) “Record” means all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court. (California Rules of Court, Rule 2.550(b)(1).) (2) A “sealed” record is a record that, by Court order, is not open to inspection by the public. (California Rule of Court 2.550(b)(2)) C. SCOPE OF PROTOCOL (1) These rules do not apply to records that are required to be kept confidential by law, e.g., search warrant records which are sealed pursuant to People v. Hobbs (1994) 7 Cal.4th 948, 963. (California Rules of Court, Rule 2.550(a)(2).) (2) Noaction taken under this protocol, including the sealing of any records, shall affect the criminal discovery process, including any protective orders or actions pursuant to Penal Code § 1054.7. D. EXPRESS FACTUAL FINDINGS REQUIRED TO SEAL RECORDS Pursuant to California Rules of Court, Rule 2.550(d), the Court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public accessto the records; (2) Theoverriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudicedifthe record is not sealed; 20 RULE14 - con’t (4) (5) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES The proposed sealing is narrowly tailored; and Noless restrictive meansexist to achieve the overriding interest. APPLICATION, FILING AND SERVICE REQUIREMENTS (1) (2) (3) A party seeking an order to seal a record shall comply with the requirements of California Rules of Court, Rule 2.551. Except as provided in E(3), any motion or application to seal a record shall be filed with the Court at least four Court days prior to the time set for the hearing of the motion or application. Records | that are the subject of a motion or application to seal shall be provisionally sealed pending the determination of the motion to seal. Such records may be considered by the Court for any purpose, including a finding of probable cause, pending the determination of the motion or application to seal. The Clerk’s Office shall post the motion or application and any attachments (except for attachments containing information sought to be sealed), case name and docket number on the Court website no later than 5 p.m. of the second Court dayafterfiling. If a sealing order is issued pursuant to an ex parte application, the Clerk’s Office shall post the motion or application and any attachments (except for attachments containing information sought to be sealed), case name and docket number on the Court website no later than 5 p.m. of the second Court day after filing. If the Court issues a sealing order following an ex parte application, that order shall be deemedto be a provisional order and subject to a de novo court review upon the request of any interested person. NOTICE OF SEALING ORDER In every matter in which a record has been ordered sealed, the requesting party shall file in the Clerk’s Office a written notice of the sealing order prior to the date of arraignment, or if arraignment has already takenplace, ‘no later than 5 p.m. of the second Court day after the sealing order. UNSEALING OF RECORDS (1) In misdemeanor matters, if any record has been ordered sealed, the Court shall order that the record be unsealed at the time of arraignment unless a party to the proceedings requests that the record remain sealed and the Court makes express findings pursuant to Section D above to permit the continued sealing of the record. Notice of any request that the record remain sealed shall be provided in accordance with Section E. If notice is provided in accordance with Section E, a motion or application to seal may be heard at the Court’s next motion calendar. 21 RULE 14 —con’t (Eff. 1/01/15) (2) (3) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL RULES In felony matters, if any record has been ordered sealed, the Court shall order that the record be unsealed no later than the completion of the preliminary examination unless a party to the proceedings requests that the record remain sealed and the Court makes express findings pursuant to Section D above. Notice of any request that record remain sealed shall be provided in accordance with section E andshall be filed and served onall parties who have appeared in the proceedings at least three Court days prior to the first date scheduled for the preliminary examination. The hearing on the request for the record to remain sealed will be heard at the conclusion of the preliminary examination. In all matters, any person may bring a motion or application pursuant to California Rules of Court, Rule 2.551(h) for the unsealing of any Court record previously sealed, and the Court may order the unsealing of any record previously sealed in accordance with that rule. 22 PROOFOF SERVICEBY U.S. MAIL, ELECTRONIC MAIL, AND ONLINE SUBMISSION I, Jonathan E. Berger, declare: I am over 18 years of age and not a party to this action. lama citizen of the United States and a resident of Sonoma County, Cali- fornia. My business address is 1415 Fulton Road #205-170, Santa Rosa, California. On June 11, 2015, I served the attached: MOTION FOR JUDICIAL NOTICE by placing true and correct copies thereof in sealed envelopes, with first class postage fully prepaid thereon, and placing them in a United States Postal Service mailbox. The envelopes were addressed as follows: Appeals Clerk, Criminal Division Santa Clara County Superior Court 191 N.First Street San José, CA 95113-1090 Attn: Hon. Jerome Nadler Office of the District Attorney 70 W.Hedding Street San José, CA 95110 Sixth District Appellate Program 100 N. Winchester Blvd., Suite 310 Santa Clara, CA 95050 On the same date, I served the same document by transmit- ting true and correct electronic copies thereof, in PDF format, by electronic mail to the following addresses. The originating email address wasjonbergerlaw@gmail.com. Office of the Attorney General Docketing6DCASFAWT@doj.ca.gov Nafiz M. Ahmed, Esq. nafiz@ahmedandsukaram.com Victoria Hobel Schultz, Esq. vhobelschultz@gmail.com Adam S. Rodriguez [Email addressonfile] On the samedate, I served the same documentto the Courtof Appeal, Sixth Appellate District, by transmitting a true and correct electronic copy thereof, in PDF format, by means of that court's online electronic submissionfacility. I declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Dated:ne (©, 2016 ALOA Sebastopol, CA [yrathan E. Berger