Birts

*55 Petitioner Willard Birts, Jr. (petitioner), was charged with several counts of felony domestic violence, along with special allegations for use of a deadly weapon, serious felony enhancements, prior strikes and prison priors. Shortly after the trial judge ruled on several pretrial motions, real party in interest the People of the State of California (the District Attorney) moved to dismiss the case for insufficient evidence, and the motion was granted. The following day, the District Attorney refiled the case under a new case number. The refiled case was assigned to the same trial judge as before, and the District Attorney immediately moved to disqualify him under Code of Civil Procedure section 170.6 ( section 170.6 ). The motion was granted by respondent superior court. Petitioner now seeks writ relief, arguing the District Attorney's peremptory challenge in the refiled case was an abuse of the judicial process in violation of his due process rights.

We agree that the peremptory challenge should have been denied, but for a different reason. Because the record before us discloses a clear effort by the District Attorney *189 to avoid the effect of the trial judge's orders in…