Finding a trial judge unavailable to hear relitigated suppression motion requires a greater showing than “mere inconvenience.” The prosecutor dismissed possession of child pornography charges against Rodriguez after Judge Chiarello granted a suppression motion. After the prosecutor refiled the charges, Rodriguez moved pursuant to Penal Code section 1538.5, subdivision (p) to set his new suppression motion before Judge Chiarello. The presiding judge denied the motion, finding Judge Chiarello unavailable because he had been transferred to a different department and was in Palo Alto for a sentencing calendar. A new judge was assigned the matter, and the suppression motion was ultimately denied. Rodriguez was convicted and appealed. The Court of Appeal affirmed. The Supreme Court granted review. Held: Reversed and remanded. Under section 1538.5, subdivision (p), “Relitigation of the [suppression] motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.” The provision was enacted to combat the risk that prosecutors would attempt to engage in judge shopping by dismissing cases after losing suppression motions before one judge, then refiling charges in an attempt to obtain a more favorable ruling from a different judge. Although section 1538.5, subdivision (p) gives trial courts discretion to determine whether a particular judge is available, they must “take reasonable steps in good faith to ensure that the same judge who granted the previous suppression motion is assigned to hear the relitigated motion” and mere inconvenience is insufficient. The trial court abused its discretion in this case. The record does not show that the trial court ever attempted to contact Judge Chiarello or inquired as to his availability. Thus, it failed to take “reasonable measures.” That error requires reversal because there is a reasonable probability that Rodriquez would have obtained a more favorable outcome had Judge Chiarello decided the relitigated suppression motion.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S223129.PDF