With respect, I think that Justice Cody beats Justice Yegan in this one.
Everyone agrees that one judge generally can't reconsider the decisions of a different judge. In criminal cases (like this one) or any others.
Justice Yegan, in dissent, thinks that's dispositive here. But Justice Cody says that the prosecution forfeited this argument by not brining it up in the trial court, and I agree.
Justice Yegan says (repeatedly) that as a result of today's holding, "[t]he judge shopping lamp has now been lit." I think not. The unique thing that happened here was that once the issue was raised in front of the second judge -- here, whether or not to strike a prior strike under Romero -- the prosecutor didn't argue that the second judge had no authority to reconsider the first judge's decision not to strike the strike. The prosecutor instead argued that the first judge's decision was persuasive, not that it was binding.
That's a strategic choice. The first judge had expressly said that the issue was "very, very close," so there was a definite chance that the first judge might end up reconsidering. The prosecutor apparently did not want to take that risk, and instead argued the merits with the second judge. That's fine. The prosecutor might well have thought that the second judge was more likely to agree with the prosecutor's argument than the first.
But having made that call, after the second judge decides against you, you can't then argue that the second judge had no jurisdiction to make the call in the first place. Forfeiture doctrines are expressly designed to prevent such strategic election.
Indeed, to me, the "judge shopping lamp" is more applicable to the rule articulated by the dissent, rather than the majority. Under the majority's rule, all that the prosecutor has to say is (accurately) "Your honor, you have no jurisdiction to reconsider the prior judge's ruling." Easily done, and quickly turns off the purported judge shopping lamp. Whereas under Justice Yegan's principle, the prosecution (or the defense, if the tables are turned) can successfully judge shop with the second judge, hoping to prevail if the issue is decided their way and, if unsuccessful, then arguing that the first judge is the only one who can make that call.
Everyone agrees that judge shopping should be avoided. But I think that the majority opinion here is actually the best way to stop it.
