People v. Superior Court

This original proceeding arises from a prosecution for possession of methamphetamine. It is a People’s petition seeking a writ of mandate directing respondent court to vacate its order rejecting a Code of Civil Procedure section 170.6 peremptory challenge. 1 The question is whether the reasoning of People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798 [ 123 Cal.Rptr.2d 31 , 50 P.3d 743 ] (Jimenez), construing Penal Code section 1538.5, subdivision (p) (relitigated motions to suppress must be heard by the same judge), 2 to be an implied exception to section 170.6, compels that relitigated motions to set aside an information grounded upon review of a motion-to-suppress denial are also an implied exception to section 170.6. Our *717 answer is no. We therefore grant the People’s petition and direct respondent court to vacate its order rejecting the People’s peremptory challenge and enter a new order accepting it.

LEGAL BACKGROUND

A criminal defendant may test the unreasonableness of a search or seizure by making a motion to suppress at the preliminary hearing and, if unsuccessful, renewing the motion in superior court if held to answer. (§ 1538.5, subd. (i).) Or, if…