P. v. Gruninger 12/12/01 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E026993

Case Date: 03/14/2002

Preview:Filed 12/12/01

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH DISTRICT DIVISION TWO STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. FRANZ GRUNINGER, Defendant and Appellant. E026993 (Super.Ct.No. RIF084774) OPINION

In re FRANZ GRUNINGER, on Habeas Corpus.

E030212 (Super.Ct.No. RIF084774)

APPEAL from the Superior Court of Riverside County. Robert J. McIntyre and W. Charles Morgan, Judges. Affirmed. ORIGINAL PROCEEDING; petition for writ of habeas corpus. Petition denied. Douglas G. Benedon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., 1

Supervising Deputy Attorney General and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent. After the trial court granted defendant's Penal Code section 1538.5 motion to suppress evidence, and as a result the original indictment was dismissed, the district attorney filed an information that again charged defendant with violating Health and Safety Code section 11352, subdivision (a) by transporting and possessing cocaine for sale.1 The information further alleged a weight enhancement under Health and Safety Code section 11370.4. Defendant pled not guilty and denied the special allegation after which the case was assigned to Judge Velia Sherman, the judge who had granted defendant's suppression motion. The district attorney then filed a motion under Code of Civil Procedure section 170.6 to disqualify Judge Sherman. Judge J. Thompson Hanks granted that motion, over defendant's objection, and reassigned the case to Judge Robert McIntyre. Defendant then filed another motion to suppress the evidence but after reviewing pertinent portions of the transcript of the first hearing and taking additional evidence, Judge McIntyre denied that motion. As a result, defendant withdrew his not guilty plea and, pursuant to a plea agreement with the district attorney, entered a plea of

Defendant has requested that we take judicial notice of the original indictment and the clerk's minute order that reflects the trial court granted defendant's motion to suppress evidence. That request for judicial notice is granted.

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guilty to a charge of criminal conspiracy. Defendant also admitted the weight enhancement.2 Defendant contends in this appeal from the judgment that the trial court erroneously granted the district attorney's motion to disqualify Judge Sherman because that disqualification violated subdivision (p) of Penal Code section 1538.5. That provision requires that relitigation of a motion to suppress evidence "shall be heard by the same judge who granted the motion at the first hearing if the judge is available." (Pen. Code,

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