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People v. Superior Court (William Enrique Olivo)

California Court of Appeals, Fourth District, Second Division

June 27, 2019

THE PEOPLE, Petitioner,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent WILLIAM ENRIQUE OLIVO, Real Party in Interest.

          ORIGINAL PROCEEDING; petition for writ of mandate. Super.Ct. No. FMB19000094 Rodney A. Cortez and Joel S. Agron, Judges. Petition granted.

          Jason Anderson, District Attorney and Brent J. Schultze, Deputy District Attorney, for Petitioner.

          Steven Parnell Weaver and Michael Milligan, Deputy Public Defenders, for Real Party in Interest.

          OPINION

          SLOUGH, J.

         The 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 challenge.

         Respondent, 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.

         The 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 challenge.

         I

         FACTS

         A. The Incident

         According to the People's trial brief, this case arises from a violent outburst by real party in interest, William Olivo.[1]

         The 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.”

         B.K. 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.

         B.K. 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 ...


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