Prosecution’s peremptory challenge to judge who was reassigned to case when it was refiled should have been denied as untimely because it was a clear effort by the prosecution to avoid the trial judge’s orders in previously dismissed case. Birts was charged with several counts of felony domestic violence, along with special allegations. The prosecutor made several in limine motions regarding the presentation of evidence. The judge granted some, but denied others. The evidentiary rulings would have undermined the prosecution’s case. The prosecution successfully moved to dismiss the case (over defense objection), citing insufficient evidence, but also stated it intended to refile the charges. The prosecution then filed a new complaint with a different case number. When the matter was ready for trial, it was assigned to the same judge who had ruled on the prosecution’s in limine motions in the first case. The prosecution then filed a peremptory challenge against the judge under Code of Civil Procedure section 170.6, which was granted over defense objection. Birts filed a petition for writ of mandate challenging that order. Held: Writ of mandate issued. Section 170.6 permits a party to disqualify a judge for prejudice based upon a sworn affidavit without having to establish the fact of prejudice before the case is assigned for trial. However, to prevent forum shopping, a peremptory challenge may not be made during a subsequent proceeding that is a continuation of an earlier action. After analyzing cases applying the “continuation rule,” the Court of Appeal here concluded that prosecution’s peremptory challenge should have been dismissed as untimely. The dismissed and refiled cases were virtually the same and the record disclosed the prosecution’s “clear and singular intent to evade the effect of [the trial judge’s] evidentiary rulings by dismissing the prior action.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A152923.PDF