California Court of Appeals, Fourth District, Second Division
ORIGINAL PROCEEDING; petition for writ of mandate. Super.Ct.
No. FMB19000094 Rodney A. Cortez and Joel S. Agron, Judges.
Anderson, District Attorney and Brent J. Schultze, Deputy
District Attorney, for Petitioner.
Parnell Weaver and Michael Milligan, Deputy Public Defenders,
for Real Party in Interest.
People seek a writ of mandate commanding the trial court to
honor the affidavit of prejudice (peremptory challenge) they
filed against the trial court judge, Joel S. Agron, under
Code of Civil Procedure section 170.6 (Section 170.6). The
underlying case is a murder prosecution which the People
dismissed and refiled the same day along with the peremptory
the Superior Court of San Bernardino County, refused to honor
the peremptory challenge, deeming it untimely. Relying on
Birts v. Superior Court (2018) 22 Cal.App.5th 53
(Birts), the court concluded the People were engaged
in prosecutorial “gamesmanship” and attempting to
“forum shop, ” and held the second complaint
was a continuation of the prior case, not a new case, making
the peremptory challenge untimely.
People argue the case falls under Paredes v. Superior
Court (1999) 77 Cal.App.4th 24 (Paredes), which
recognizes that when a criminal case is dismissed and refiled
it is a new case for purposes of Section 170.6. They argue
Birts does not apply because they weren't
attempting to avoid a ruling of the trial court. We agree and
therefore will direct the trial court to honor the peremptory
to the People's trial brief, this case arises from a
violent outburst by real party in interest, William
People say Olivo attended a Super Bowl party on February 4,
2018 with B.K. and her boyfriend D.C., among others, at a
residence in Twentynine Palms. All three stayed overnight.
Early the following morning, D.C. left for work. B.K. woke
later, found herself alone with Olivo, and started cleaning
the apartment. Apparently she upset Olivo when she threw away
a nearly empty bag of candy. She apologized and removed the
candy from the trash, but Olivo remained aggravated. He said,
“[You're] not my girlfriend. I don't have to
put up with [your] shit. I will kill you.” B.K. was
frightened and fled to a bathroom, where she locked herself
in. As she left, Olivo said, “Don't even think
about calling the cops, I'll kill you.”
perceived Olivo to be a threat and called D.C. to help her
get out of the apartment. D.C. returned to the apartment with
his roommate, J.T. When they arrived, they found Olivo on the
couch in the living room. They ignored him and located B.K.
D.C. then went to speak to Olivo, while J.T. and B.K. were in
the adjoining kitchen. D.C. said, “What was going on
here?” Olivo became defensive and yelled loudly that
they needed to leave. Olivo stood up from the couch and moved
close to D.C., yelling at him. Though D.C. attempted to
defuse the situation, Olivo charged, grabbed D.C. at the
waist and pushed him against a wall.
and J.T. moved away when Olivo attacked D.C. They then heard
D.C. scream, “I've been stabbed!” J.T. ran to
the living room and found D.C. on his back with Olivo on top
of him. He pulled Olivo off, whereupon Olivo turned on him
brandishing a knife in a threatening manner. J.T. identified
the knife as the murder weapon at the preliminary ...