California statute that requires same judge hear a subsequent motion to suppress is designed to prevent forum shopping, and it must be complied with unless the same judge is unavailable or just can’t hear the motion. People v. Rodriguez, 2016 Cal. LEXIS 6975 (Aug. 22, 2016):
Criminal defendants routinely file motions at the outset of their cases to suppress the evidence against them. When a judge grants such a motion, the prosecution may decide to dismiss the case and refile charges. But if the prosecution does refile such charges, Penal Code section 1538.5, subdivision (p) provides that any suppression motion the defendant subsequently files must be heard by the “same judge” who granted the prior motion so long as that judge is “available.” The question before us is whether trial courts are vested with discretion to decide whether a judge is available under section 1538.5(p), and if so, what limitations constrain that discretion.
What we hold is that although trial courts possess broad discretion to distribute business within their courts and make determinations concerning the availability of judges, that discretion must be exercised in a manner consistent with constraints imposed by section 1538.5(p). In light of the statute’s text, as well as its purpose of prohibiting prosecutorial forum shopping, the trial court’s discretion should be exercised in accordance with the following understanding: A judge may be found unavailable for purposes of section 1538.5(p) only if the trial court, acting in good faith and taking reasonable steps, cannot arrange for that judge to hear the motion. The trial court must make its finding of unavailability on the record.
Because the trial court below did not take reasonable measures to ensure compliance with section 1538.5(p), we find an abuse of discretion. And because the resulting error was prejudicial, we reverse the judgment of the Court of Appeal and remand the case with directions that the Court of Appeal instruct the trial court to determine on the record whether the relevant judge is now available.