Barrrett v. State

• Decision Date: 10 December 1999
• Citation: 91 Cal.Rptr.2d 116
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 3 Dist. 1999) JAMES SCOTT BARRETT, Petitioner, v. THE SUPERIOR COURT OF YOLO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. C030752 (Yolo) Filed

91 Cal.Rptr.2d 116 (Cal.App. 3 Dist. 1999)

JAMES SCOTT BARRETT, Petitioner, v. THE SUPERIOR COURT OF YOLO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

C030752

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)

Filed 12/10/99Certified for Pub. 12/22/99 (order attached)

APPEAL from an order of the Yolo County Superior Court, Timothy J. Fall, Judge. Vacated.

(Super. Ct. No. 97004510)

Hayes H. Gable III for Petitioner.

No appearance for Respondent.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Clayton S. Tanaka, Deputy Attorney General, for Real Party in Interest.

CERTIFIED FOR PUBLICATION

SCOTLAND , P.J.

Petitioner James Scott Barrett seeks a writ of mandate directing respondent Yolo County Superior Court to vacate its order disallowing a peremptory challenge (Code Civ. Proc., 170.6) to the Honorable Timothy J. Fall. (Further section references are to this code unless specified otherwise.) Petitioner contends, and the People concede, Judge Fall erred in denying the challenge on the ground that it was untimely because Judge Fall had presided at petitioner's preliminary hearing. We shall issue a peremptory writ of mandate.

BACKGROUND

Petitioner was charged with vehicular manslaughter (Pen. Code, 191.5, subd. (a)) and driving under the influence of alcohol (DUI) causing injury with two or more prior violations of Vehicle Code section 23152, subdivision (a) (Veh. Code, 23153, subds. (a), (b), 23190, subd. (a)). The complaint further alleged that petitioner inflicted great bodily injury upon four victims within the meaning of Penal Code section 12022.7, subdivision (a) and proximately caused bodily injury to multiple victims (Veh. Code, 23182).

On January 21 and 22, 1998, a preliminary hearing was conducted before Judge Fall. The People presented evidence that, despite rainy weather and signs warning of flooding on the road, defendant drove his car at an excessive rate of speed for the conditions and caused an accident which killed one person and inflicted great bodily injury upon three others. Approximately two hours after the accident, defendant had a blood alcohol level of .13; he also had two prior DUI convictions. At the conclusion of the hearing, petitioner was held to answer on all counts alleged in the complaint. Thereafter, the District Attorney of Yolo County filed an information charging petitioner with those offenses.

On or about September 4, 1998, Judge Fall was assigned to hear petitioner's nonstatutory motion to dismiss the information. On September 8, 1998, petitioner moved pursuant to section 170.6 to disqualify Judge Fall from hearing the matter.

Judge Fall denied the motion, but the parties did not receive notice of the ruling until October 1, 1998, at the hearing on the motion to dismiss. In denying the motion, Judge Fall stated: "My understanding of the cases, including People v. DeJesus [(1995) 38 Cal.App.4th 1], which has some dicta about preliminary hearings and [section] 170.6, there's nothing showing that I am subject to a [section] 170.6 after I've done a preliminary hearing. Reasonable minds can differ on what the cases mean, but that's my interpretation of them. And because Section 170 says I'm supposed to take every case that appears in court unless disqualified, I try to be careful to make sure I don't go shunning off cases if I'm not disqualified for them. I think that's the situation here, so I was planning to do the hearing on October 5th."

DISCUSSION

Section 170.6 permits a party to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 193; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 697.)¹

Where a disqualification motion is timely filed and in proper form, the trial court is bound to accept it without further inquiry. (People v. Superior Court (Williams), supra, 8 Cal.App.4th at p. 699; People v. Whitfield (1986) 183 Cal.App.3d 299, 304; Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 658.)

Section 170.6, subdivision (2) sets forth the time limits for a disqualification motion, one of which is the motion may not be made after a hearing at which the challenged judge determined contested fact issues relating to the merits of the case.²

"It is not enough that a judge make a determination which relates to contested fact issues. He must have actually resolved or determined conflicting factual contentions relating to the merits prior to trial before the right to disqualify is lost." (Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 431, italics omitted; accord Landmark Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d 525, 527.)

Judge Fall denied petitioner's motion under section 170.6 on the ground that a peremptory challenge was not available after he had presided at petitioner's preliminary hearing. In other words, he concluded the motion was untimely because petitioner's preliminary hearing involved a determination of contested fact issues relating to the merits of the case.

In so ruling, Judge Fall disregarded as dicta language in People v. DeJesus, supra, 38 Cal.App.4th 1 (hereafter DeJesus), indicating that a section 170.6 challenge may be made following a preliminary hearing against the judge presiding at the hearing. (Id. at p. 17.)

DeJesus rejected a contention that it is impermissible as a matter of law for a judge to conduct both the preliminary hearing and trial regardless of any actual impropriety or the appearance of impropriety. (38 Cal.App.4th at p. 14.) The defendants, who had not exercised a challenge under section 170.6, agreed that the judge had made no evidentiary rulings which he would have to revisit at trial and that there was no basis to disqualify the judge other than the fact he had conducted the preliminary hearing. (Id. at pp. 13, 17.) DeJesus concluded "there is no inherent prejudice resulting from the fact a judge has presided over a preliminary hearing which would automatically disqualify that judge from presiding over the subsequent trial." (Id. at p. 17.) Rather than a blanket prohibition in all cases against a judge presiding over both the preliminary hearing and trial, the appropriate remedy for any perceived bias is for counsel to avail themselves of the procedures for recusal afforded by sections 170.1 or 170.6. (Id. at pp. 16-17.)

Although DeJesus was not called upon to decide expressly whether a section 170.6 motion may be brought after a judge has conducted a preliminary hearing, its dicta to this effect is sound.

The magistrate is called upon only to determine whether the factual showing is sufficient to establish probable cause to believe the defendant committed a felony. (People v. Slaughter (1984) 35 Cal.3d 629, 636-637; Pen. Code, 866, subd. (b).) "'Within the framework of his limited role, . . . the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses. In other words, in assisting him in his determination of "sufficient cause," the magistrate is entitled to perform adjudicatory functions akin to the functions of a trial judge. Yet the proceeding is not a trial, and if the magistrate forms a personal opinion regarding the guilt or innocence of the accused, that opinion is of no legal significance whatever in view of the limited nature of the proceedings.'" (People v. Slaughter, supra, at p. 637, citations omitted.)

"In short, the magistrate is not a trier of fact. He does not decide whether defendant committed the crime, but only whether there is '"some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it."' If the record shows strong and credible evidence of defendant's guilt, the magistrate may reasonably assume the possibility of his guilt. Thus in many cases he will not find it necessary to resolve all conflicts in the evidence, in order to find probable cause to hold the defendant for trial. The magistrate's power to decide factual disputes exists to assist him in his determination of sufficient cause; if he can determine that issue without resolving factual conflicts, he may do so." (People v. Slaughter, supra, 35 Cal.3d at pp. 637-638, citations and fn. omitted.)

At a typical preliminary hearing, there rarely are conflicts in the evidence to resolve. (DeJesus, supra, 38 Cal.App.4th at p. 15.) Generally, defense witnesses are not called, affirmative defenses are not actually litigated, and the evidentiary showing by the People usually is limited to presenting only...