Metropolitan News-Enterprise


Friday, June 28, 2019


Page 1


Court of Appeal:

Dismissal, Refiling of Charges Enables CCP §170.6 Challenge

Recent Case Disallowing a Challenge Is Distinguished on the Facts


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal held yesterday that it was error to disallow a peremptory challenge on the ground that prosecutors were playing games by dismissing charges, then refiling them the same day along with a declaration that the judge who had been handling the case was biased.

Justice Marsha G. Slough wrote the opinion which orders that the San Bernardino Superior Court honor a challenge to Judge Joel S. Agron brought by the county’s District Attorney’s Office.

The challenge, pursuant to Code of Civil Procedure §170.6, was rejected by San Bernardino Superior Court Judge Rodney A. Cortez on the basis of the April 11, 2018 decision of the First District’s Div. Three in Birts v. Superior Court. There, Justice Martin J. Jenkins said:

“[T]he dismissal and refiling simply erased the effect of Judge Buchwald’s evidentiary rulings. Under section 170.6 and the cases interpreting it, we cannot allow such gamesmanship.”

 He borrowed from civil cases the “continuation rule,” declaring that the new case was in actuality the original case and that the challenge was untimely, citing the provision in §170.6 that “[i]f directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.”

Judge Applies Birts

Cortez reasoned that “this is purely—what the Birts case is talking about is prosecutorial gamesmanship in order to gain an upper hand and forum shop.” He also held that the new case was, in actuality, a continuation of the first case, and that the challenge was untimely.

Slough said that if the case—which now had a new case number—is a new one, the challenge was timely; if it’s a continuation, it wasn’t.

 “We need not decide whether the ‘continuation rule’ ever applies in criminal cases, where dismissal has significant consequences affecting the rights of the accused,” she wrote. “It doesn’t apply in this case.”

In Birts, Slough noted, the prosecition dismissed and refiled in order to avoid a judge’s ruling. In the present case, she said, the People acted to effect delay because they were not ready to go to trial by the deadline.

That, she said, renders Birts inapplicable.

Embraces Vogel Opinion

Slough pointed to a 1999 decision by this district’s Div. One authored by then-Justice Miriam Vogel (now in private practice) in Paredes v. Superior Court.

A defendant had peremptorily challenged Los Angeles Superior Court Judge Ronald Coen and the case was shifted to Judge L. Jeffrey Wiatt, since deceased. Charges were dismissed and refiled; ther co-defendant challenged Wiatt, who rejected the challenge as untimely, saying the case was a contuation of the first one.

Vogel’s opinion rejects Wiatt’s view and orders “the superior court to grant Paredes’s motion to disqualify Judge Wiatt and to transfer this case to another judge.”

Slough declared:

“Like many courts before us, we conclude the reasoning of Paredes is persuasive and see no need to depart from it….When the trial court dismissed case Number FMB18000079, that terminated the case for all purposes. When the People filed a complaint in case Number FMB19000094, that began a second case. It follows that the People’s simultaneously filed peremptory challenge was timely, and the trial court was required to grant it.”

The case is People v. Superior Court (Olivo), 2019 S.O.S. 3075.


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