People v. Superior Court

The Legislature has provided that when a felony case is dismissed because a magistrate or court granted a motion to suppress evidence, making the evidence insufficient, the prosecution may refile the case and relitigate the suppression motion. (Pen. Code, § 1538.5, subd. (j).) However, the Legislature has also provided that the relitigated motion “shall be heard by the same judge who granted the motion at the first hearing if the judge is available.” (Pen. Code, § 1538.5, subd. (p); see Soil v. Superior Court (1997) 55 Cal.App.4th 872 [ 64 Cal.Rptr.2d 319 ].) We granted review primarily to decide whether the prosecution may peremptorily challenge that judge under Code of Civil Procedure section 170.6, thus making the judge unavailable to hear the relitigated suppression motion.

To allow the prosecution to peremptorily challenge the judge, or judge acting as a magistrate, who decided the first suppression motion would sanction the forum shopping the Legislature prohibited when it enacted Penal Code section 1538.5, subdivision (p). Accordingly, we conclude that, notwithstanding a peremptory challenge, that judge or magistrate, if otherwise available, remains available to…