Abdul Y., In re

• Citation: 182 Cal.Rptr. 146,130 Cal.App.3d 847
• Parties: In re ABDUL Y., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ABDUL Y., Defendant and Appellant. Civ. 20432.
• Decision Date: 20 April 1982
• Court: California Court of Appeals Court of Appeals

Page 146

182 Cal.Rptr. 146

130 Cal.App.3d 847

In re ABDUL Y., A Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. ABDUL Y., Defendant and Appellant.

Civ. 20432.

Court of Appeal, Third District, California.

April 20, 1982.

As Modified April 30, 1982.

Rehearing Denied May 14, 1982.

Hearing Denied July 14, 1982.

Williams J. Owen and Albert W. Brodie, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi, Ramon M. de la Guardia, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535, we held in a per curiam opinion that a hearing in a criminal case on a motion under Penal Code section 1538.5 for the suppression of evidence did not constitute a proceeding "relating to the merits" within the meaning of Code of Civil Procedure section 170.6. We have reexamined that ex cathedra pronouncement and, as we shall explain, find it does not withstand scrutiny. We therefore overrule Parnell and hold instead that a peremptory motion to disqualify the judge who had earlier conducted a suppression hearing was properly denied as untimely.

In this case a petition was filed in Sacramento County Juvenile Court alleging that Abdul Y., age 14, was a minor coming under Welfare and Institutions Code section 602 in that he had committed murder (Pen.Code, § 187), and had used a firearm during commission of the crime (Pen.Code, § 12022.5). The minor appeals from the order sustaining the petition, declaring the minor a ward of the court and committing him to the California Youth Authority.

On appeal the minor challenges (1) the denial of his peremptory motion to disqualify the juvenile court judge as untimely (Code Civ.Proc., § 170.6); (2) the voluntariness of his confession; and (3) the order committing him to the California Youth Authority.

FACTS

At approximately 10:30 p. m. on June 16, 1980, 15-year-old Nurah Y. telephoned her 14-year-old boyfriend, Marvin Keola, and asked him to visit her at her house. A short time later Marvin entered the Y. home through Nurah's bedroom window which she had left open. The surreptitious mode of entry was necessary because the Y. family did not approve of the relationship between Nurah and Marvin.

Mr. and Mrs. Y. were asleep during the early morning hours of that day when they were awakened by noises. Mrs. Y. attempted to enter Nurah's room to investigate, but the bedroom door was secured shut by a chair Nurah had placed against it; this allowed Marvin time to hide under Nurah's bed. Nurah then opened the door and allowed Mrs. Y. to enter. Mr. Y. was investigating the backyard area. He thereafter joined Mrs. Y. and Nurah in Nurah's bedroom.

Marvin and Nurah had been smoking marijuana that evening. Mr. and Mrs. Y. smelled the marijuana and began searching Nurah's bedroom for it. When Mr. Y. began to look near and around the bed, Nurah became frightened and ran out of the room. Mr. and Mrs. Y. continued their search and soon discovered Marvin hiding under Nurah's bed. Mrs. Y. called to appellant to come into the room.

Appellant ran into Nurah's bedroom armed with a .22 caliber semi-automatic rifle. The lights were on in the room. Marvin was lying on the floor with one leg under the bed. Appellant fired the entire clip of 15 shots at Marvin.

At approximately 3:26 a. m., Sergeant Farnsworth of the Sacramento Police Department arrived at the Y. house in response to a radio broadcast advising that a possible burglary suspect had been shot in the leg. ¹ Sergeant Farnsworth was motioned into the house by Mrs. Y. He found the slain body of Marvin Keola in the house's back bedroom.

Officers Peters and Olson arrived at the Y. residence shortly after Sergeant Farnsworth. Officer Peters testified that he observed appellant on his bed "in a very rigid, prone position, and he was shaking very violently, and so violently ... I thought he was having an epileptic seizure." Officer Peters claimed he tried to comfort appellant by placing his hand on appellant's shoulder and asking him "if everything was okay, if he was all right." Appellant continued to shake and Officer Peters said to him "Hey, get ahold of yourself. Everything is all right. Hey, what happened." Appellant responded "I shot a burglar." After offering further consolation, the officer told appellant that he would have to know what happened in detail. Appellant claimed that he had been awakened by what sounded like a window sliding open and shortly thereafter he heard his mother say "Abdul, come quick." He grabbed his gun, ran into Nurah's bedroom, saw a crouched figure in the corner of the room, and fired all 15 rounds at the figure. Appellant told Peters that his mother then turned on the lights and he saw the individual on the floor; he maintained that he did not know the individual but had seen him in the neighborhood.

Officer Olson then returned to the kitchen area. About five minutes later appellant joined his mother and father in the living room area. Appellant and Mrs. Y. sat on a couch and consoled each other. The Y.'s then agreed to accompany the officers to the police station for the purpose of giving statements. At the station the Y.'s were placed in separate holding rooms. Detective Padovan interviewed appellant at approximately 6:30 a. m. Appellant was read his Miranda rights and signed a waiver form. He then made a complete confession. In that confession appellant also implicated both of his parents. Repudiating his earlier version, he stated that when he entered the room his parents were already standing over Marvin with guns in their hands. His mother, he recounted, then shot Marvin twice. Appellant then fired his rifle at Marvin until he exhausted all 15 rounds in the clip. He admitted that he shot Marvin because "I just had hate for him ... cause my sister is engaged to be married. Because he had no fucking business being with my sister."

Appellant's motion to exclude this confession was denied and the confession was admitted into evidence at the jurisdictional hearing. On December 3, 1980, the court made findings that appellant had committed murder in the second degree and had used a firearm in the commission of the offense. At the dispositional hearing, held January 7, 1981, appellant was committed to the California Youth Authority.

I

Appellant contends that the trial court erred in denying his peremptory ² challenge of Judge Morgan under Code of Civil Procedure section 170.6. The petition to have appellant declared a ward of the court was filed on June 18, 1980. Following appellant's request for a rehearing after the case had been heard by a referee (Welf. & Inst.Code, § 252), the juvenile court reset the jurisdictional hearing for August 20, 1980. That hearing was thereafter rescheduled twice and eventually was set for November 18. In the interim, appellant filed a motion to "exclude statements and/or confessions." The motion was made on the grounds that the statements were the result of an illegal detention and arrest and were both involuntary and obtained in violation of his Miranda rights. The motion commenced on October 6 before Judge Morgan. It was vigorously contested, consuming all or portions of seven days. Appellant testified on his own behalf and also called his mother, a sister and a psychologist. On November 6, 1980, immediately following Judge Morgan's denial of his motion appellant made an oral motion for the court to disqualify itself voluntarily, which motion was denied.

On November 12, 1980, appellant filed a formal application to disqualify the trial judge under section 170.6. The judge ruled that the jurisdictional hearing had earlier commenced with the suppression hearing and that the motion was therefore untimely. Appellant challenges the propriety of the denial of that second motion in this appeal.

Code of Civil Procedure section 170.6 provides in substance that any party to an action may make a motion, supported by an affidavit of prejudice, to disqualify the trial judge, commissioner, or referee. ³ If the motion is timely and properly filed, the judge must recuse himself without further proof and the cause must be reassigned to another judge. (Solberg v. Superior Court, supra, 19 Cal.3d at p. 187, 137 Cal.Rptr. 460, 561 P.2d 1148.) When an affidavit of prejudice has been timely filed, the judge's disqualification is automatic and mandatory. (McCartney v. Commission on Judicial Qualifications [1974] 12 Cal.3d 512, 531-532, 116 Cal.Rptr. 260, 526 P.2d 268.) Once properly and timely challenged, the judge loses jurisdiction to proceed and all his subsequent orders and judgments are void. (In re Jose S. [1978] 78 Cal.App.3d 619, 628, 144 Cal.Rptr. 309.)

"The general rule established by section 170.6 is that disqualification is permitted at any time prior to commencement of the trial or hearing. Two exceptions are provided--the 10-day-5-day provision and the master calendar provision." ⁴ (Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 412; fn. added, 138 Cal.Rptr. 43.) The master calendar exception does not apply here because the juvenile court used a clerical rotation method of assignment rather than a master calendar system. (See In re Robert P., supra, 121 Cal.App.3d at p. 42, 175 Cal.Rptr. 252; Welf. & Inst.Code, § 246.) Whether the 10-day/5-day exception applies depends upon when the "trial" commenced.

The People argue that although the jurisdictional hearing was formally scheduled for November 18, 1980, in practical effect it had commenced on October 6th with the hearing on the motion to exclude the confession, thereby rendering the minor's 170.6 motion untimely because not made "prior to trial." We disagree.

California Rules of Court, rule 1354(b), provides that "[u]nless a different...