After the prosecution successfully moved to dismiss a case, a new case began when the prosecution filed a complaint with the same charges and, as a result, the simultaneously filed peremptory challenge against the judge was timely. The defendant was charged with murder and related offenses. The trial court ruled on various motions as the case reached the trial stage, with some rulings in favor of the defense. The prosecution moved to dismiss the case, stating it was not prepared to go forward with the trial at that time. It then filed a new complaint with the same felony charges and a new misdemeanor charge the same day, along with a peremptory challenge under Penal Code section 170.6 against the judge who had been assigned to the dismissed case. The judge hearing the prosecution’s challenge denied it as untimely, concluding that the second case was merely a continuation of the first, and accused the prosecution of gamesmanship. The prosecution sought a writ of mandate. Held: Writ of mandate issued. Section 170.6 permits a party to obtain the disqualification of a judge for prejudice, and the party is not required to establish prejudice. Generally a challenge is permitted any time before the commencement of a trial or hearing, but a challenge must be filed within 10 days of notice that a case has been assigned to a judge for all purposes. After reviewing relevant case law and statutes governing the termination of prosecutions, the Court of Appeal here agreed with the reasoning in Paredes v. Superior Court (1999) 77 Cal.App.4th 24 and concluded that a second case began when the prosecution refiled the charges. Because the peremptory challenge was filed the same day the prosecution refiled the charges, it was timely and the trial court was required to grant it. The court distinguished Birts v. Superior Court (2018) 22 Cal.App.5th 53, which applied the “continuation rule” where the prosecution’s sole rationale for the dismissal and refiling was to evade the impact of rulings made in the first case.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E072283.PDF