P v. Rodriguez (Cal. S. Ct.) "Available" Does Not Mean "Convenient" For Purposes of PC 1538.5(p)

The police searched Mr. Rodriguez's home and found evidence Rodriguez possessed child pornography.  The police used this evidence to obtain a search warrant to seize Rodriguez's computer, which was later found to contain more child pornography.  The State charged Rodriguez accordingly.

Rodriguez made a motion to suppress the evidence of child pornography on the basis it was seized in violation of the Fourth Amendment to the U.S. Constitution.  Such motions are governed by Penal Code section 1538.5.  Rodriguez chose to litigation the motion concurrent with the preliminary hearing.  One Judge Northway, sitting as the magistrate, denied the motion to suppress and held Rodriguez to answer to the charges.

Rodriguez renewed his motion to suppress under section 1538.5(i).  One Judge Chiarello heard the renewed motion and granted it, suppressing the evidence obtained during the first search as well as the evidence seized pursuant to the warrant.  The State, now without any evidence to convict Rodriguez, dismissed the case.

However, the State quickly refiled the charges.  Rodriguez, with equal alacrity, filed a motion to suppress the evidence.  Additionally, Rodriguez demanded that Judge Chiarello be assigned to hear the motion.  This because of section 1538.5(p) which state in pertinent part: 

Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.

The presiding judge, Judge Nadler, found that because Judge Chiarello was going to be at the Palo Alto courthouse on the day set for the hearing (which was at the San Jose courthouse), he was unavailable and therefore Rodriguez had no right to have Judge Chiarello hear the matter.  

The matter was then assigned to one Judge Zecher, who heard, and denied the motion to suppress.  Rodriguez, as before, filed a renewed motion to suppress under 1538.5(i).   But the trial court (the judge's name is omitted) determined that 1538.5(i) was not the proper vehicle, so Rodriguez filed PC 995 motion to set aside the information.  This 995 motion was assigned to one Judge Clark, who denied the motion, but invited Rodriguez to file a 1538.5(i) renewed motion.  Rodriguez accepted the invitation and filed a 1538.5(i) renewed motion, which Judge Clark denied.

Ultimately, Rodriguez opted for a bench trial which was assigned to . . . wait for it . . . Judge Chiarello.  Rodriguez was found guilty and placed on probation.  He appealed and the Court of Appeal affirmed, finding section 1538.5(p) conferred "wholly discretionary authority" upon P.J. Nadler to find Judge Chiarello was unavailable by reason of his being in Palo Alto on the day scheduled for Rodriguez's suppression motion.

The California Supreme Court granted review and reverses, finding P.J. Nadler abused his discretion.  

In an unnecessarily long (common for tyro justices), but not bad, opinion, Justice Cuellar finds that "available" is not coterminous with "convenient".  Rather, to achieve the legislative purpose of avoiding "judge-shopping", reasonable steps must be taken in good faith to ensure the previous judge hears the relitigated motion.  Here, P.J. Nadler didn't even try to contact Judge Chiarello to see when he may be available to come to San Jose to hear the motion (or if the parties were willing to drive to Palo Alto).  While wisely leaving the field open, the court does state that death, retirement, and mental incapacity, would certainly justify a finding of unavailability.

So the California Supreme Court remands the case to the Court of Appeal and directs it to instruct the trial court to determine whether Judge Chiarello is available to hear Rodriguez's renewed motion.  

And in a poetic twist, I read in the national news that Judge Chiarello has now swapped assignments with the (unfairly) beleaguered Judge Aaron Persky and will now be permanently sitting in Palo Alto.