Criminal
Aug. 6, 2002
Court Denies Prosecution's Peremptory Challenge
LOS ANGELES - Prosecutors cannot use a peremptory challenge to shop for a new, more sympathetic judge when they refile a case after losing a defense motion to suppress evidence and throw out the charges, the California Supreme Court has decided.
The ruling rejects an attempt by Los Angeles prosecutors to prevent Judge Michael E. Pastor from ruling a second time on a motion to suppress evidence in a cocaine possession case.
The underlying case was routine, but the Supreme Court's ruling could affect several hundred cases every year, because prosecutors often try to get a more sympathetic ear when they restart cases after a major defeat, a lawyer on the case said.
"It's significant. Theoretically, it could happen any time a judge suppresses the evidence and the case is dismissed," said Brent Riggs, deputy district attorney for Los Angeles, representing the people in this case. (People v. Superior Court of Los Angeles County (Rodrigo Alberto Jimenez), 2002 DJDAR 8641 (Cal. Aug. 1, 2002).
At issue in the ruling was a statute that, ironically, grew out of a 1993 bill originally sponsored by Los Angeles County prosecutors.
The pro-prosecution statute provided that a suppression ruling would no longer be binding if a case was dismissed and refiled.
But concern that prosecutors might take advantage of the law to forum-shop spurred a legislative amendment providing that the same judge should hear any subsequent defense motions to suppress evidence or dismiss charges.
Prosecutors in Los Angeles had argued that, because Pastor acted as a magistrate in the original case, he did not hold the same authority as Judge Marlene Kristovich, whom they wanted to hear the case.
The Supreme Court opinion, written by Justice Ming W. Chin, reversed the 2nd District Court of Appeal, which had approved the use of the peremptory in the Jimenez case.
"When we argued the case, it was very clear that it was a 7-0 win," said John Hamilton Scott, deputy public defender for the Los Angeles public defender's office, who represented Rodrigo Alberto Jimenez in the case. "When the DA got up to argue, one justice essentially said, 'I'm sorry, Mr. Riggs, but the law just seems to be against you.'"
"This is pretty much what the Los Angeles DA told the Legislature they wanted when they amended the suppression rule in 1993," said Gary Nichols, supervising attorney of the writs and appeals section of the San Diego public defender's office.
Nichols' office filed amicus briefs on behalf of Jimenez.
In an unexpected twist, the court's opinion cited a previously de-published appellate case, Barnes v. Superior Court 96 Cal.App.4th 631 (Cal. App. 2nd Dist. Feb. 28, 2002), which the justices ordered republished Aug. 1, the same day as the Jimenez decision.
"It's somewhat unusual and a bit of judicial magic: Poof, the opinion becomes republished because the Supreme Court wants to cite it," said Stephen Barnett, law professor at Boalt Hall.
In Barnes, originally published Feb. 28, 2002, the court ruled that a defendant's second motion to suppress evidence must be heard by the same judge who granted the first motion.
Attorneys for Jimenez said publishing the two decisions was a reflection of the court's strong resolve.
"They ordered Barnes published, and they cite it as persuasive authority," Scott said. "That means there are two cases out there now, and the bottom line is the courts are going to enforce what was the clear legislative intent."
Christina Landers
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