Can a judge be disqualified under section 170.6 of the California Code of Civil Procedure?

California, United States of America


The following excerpt is from People v. Superior Court, 123 Cal.Rptr.2d 31, 28 Cal.4th 798, 50 P.3d 743 (Cal. 2002):

This conclusion is also "bolstered by the well settled rule `"`that a general [statutory] provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.'"' (Miller v. Superior Court (1999) 21 Cal.4th 883, 895, 89 Cal.Rptr.2d 834, 986 P.2d 170.) Here, we cannot conclude that the more general Code of Civil Procedure section 170.6 was intended to permit the forum shopping Penal Code section 1538.5, subdivision (p), was specifically enacted to prevent. We instead hold that the Code of Civil Procedure section 170.6 right to disqualify a judge necessarily encompasses an implied exception, pursuant to Penal Code section 1538.5, subdivision (p), for the relitigation of any subsequent motion to suppress evidence." (Barnes, supra, 96 Cal. App.4th at pp. 641-642, 117 Cal.Rptr.2d 621.)

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