15 requiresa relitigated motion to suppress to be heard by the judge who granted the motion in the first case, this requirement is subject to the presiding judge’s discretionary determination that the first judge is available. Given our interpretation ofthe legislative intent behind section 1538.5, subdivision (p), coupled with the presiding judge’s inherent discretion to assign matters, Judge Nadler’s determination of Judge Chiarello’s availability was not an abuse ofdiscretion. It was not arbitrary or capricious, and it did not deprive defendant ofhis rights underthe statute.

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.

’ This exculpatory evidence wasnot provided to petitioner prior to his first trial, and was provided only months before his secondtrial. Importantly, petitioner could not use the exculpatory evidence tolitigate significant issues during hisfirst trial, including his motion under California Penal Code § 1538.5. Had this evidence beentimely provided to petitioner, the death penalty would likely have been precluded as an option during his 3 Significant evidence demonstrating petitioner's reduced culpability for the Carl C. killing wasin trial counsel's possession, but never presented to the jury at petitioner's capital trial. Petitioner's Atascadero State Hospital files reflect that he was administered an clectroencephalogram (EEG)in 1972.