Opinion
Page 1200a
107 Cal.App.4th 1200a ___Cal.Rptr.2d___ DAVID ZIESMER, Petitioner, v. THE SUPERIOR COURT OF VENTURA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. B162045 California Court of Appeal, Second District, Sixth Division April 22, 2003[Modification of opinion (107 Cal.App.4th 360; 132 Cal.Rptr.2d 130) on denial of petition for rehearing.]
This modification requires editorial changes to headnote (2), page 361, of the advance report: The sentence "The statute was enacted to prevent forum shopping and prosecutorial harassment of defendants with successive prosecutions" will be deleted from the bound volume report. This modification also requires the movement of text affecting pages 364-366 of the bound volume report.
OPINION
THE COURT.
It is ordered that the opinion filed herein on March 25, 2003, be modified as follows:
1. On page 2, in the first full paragraph, before the last sentence commencing "Immediately after the dismissal" and after the sentence ending "or file a complaint [107 Cal.App.4th 363, advance report, line 7]," insert: (See Pen. Code, §§ 997, 998 & 1010.)
2. On page 2, the second sentence of the second full paragraph beginning with "The day after the complaint" [107 Cal.App.4th 363, advance report, 2d par., line 1] is deleted and the following sentence is inserted in its place:
The day after the complaint was filed, Judge O'Neill granted Ziesmer's motion to continue the arraignment with a reservation of "any rights he might have or not have" to file a motion to disqualify the judge per section 170.6.
3. On page 3, the last sentence of the first full paragraph, beginning "The statute was enacted to prevent" [107 Cal.App.4th 364, advance report, line 4], is deleted. The citations in parentheses following the sentence— Landrum v. Superior Court (1981) 30 Cal.3d 1, 14 [182 Cal.Rptr. 146]; People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744 [23 Cal.Rptr.2d 733]—are also deleted.
4. The paragraph commencing at the bottom of page 4 with "The People contend" and ending at the top of page 5 [107 Cal.App.4th 365, advance
Page 1200b
report, 2d par.] with "the case was dismissed" is deleted and the following paragraph is inserted in its place:
The People contend Paredes is distinguishable because the order dismissing the indictment ordered the complaint to be refiled under the same case number (see § 997). Ziesmer remained in custody after the indictment was dismissed (see §§ 998, 1010), and Judge O'Neill decided contested issues of fact before the indictment was dismissed. These distinctions do not compel a different result. Paredes applies here because of one undeniable fact: the case was dismissed.
5. On page 7, the last sentence in the last paragraph that reads "The parties are to bear their own costs" [107 Cal.App.4th 367, advance report, line 10] is deleted.
There is no change in the judgment.
The People's petition for rehearing is denied.