D.M. v. Superior Court of L.A. Cnty.

• Decision Date: 17 June 2011
• Docket Number: No. B228530.,B228530.
• Citation: 126 Cal.Rptr.3d 785,196 Cal.App.4th 879,2011 Daily Journal D.A.R. 8953,11 Cal. Daily Op. Serv. 7540
• Parties: D.M., Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

196 Cal.App.4th 879

126 Cal.Rptr.3d 785

11 Cal. Daily Op. Serv. 7540

2011 Daily Journal D.A.R. 8953

D.M., Petitioner,

v. SUPERIOR COURT of Los Angeles County, Respondent;The People, Real Party in Interest.

No. B228530.

Court of Appeal, Second District, Division 3, California.

June 17, 2011.

Michael P. Judge, Ronald L. Brown, Public Defenders, Albert J. Menaster, Guillermo Arevalo–Farias, and Rourke Stacey, Deputy Public Defenders, for Petitioner.

Frederick R. Bennett, Court Counsel, for Respondent.

Steve Cooley, District Attorney, Brentford Ferreira and Beth L. Widmark, Deputy District Attorneys, for Real Party in Interest.

KLEIN, P.J.

Petitioner D.M. seeks a writ of mandate directing respondent superior court to vacate its order of October 14, 2010, denying D.M.'s peremptory challenge to Referee Kesler (the Referee) pursuant to Code of Civil Procedure section 170.6, and to enter a new and different order transferring the matter to another judicial officer.¹

The Referee denied D.M.'s peremptory challenge as untimely, on the ground the matter had been assigned by the presiding judge of the juvenile court to the Referee “for all purposes including trial,” and a peremptory challenge to an all purpose judge must be made within 10 days after notice of the all purpose assignment. (§ 170.6, subd. (a)(2).)

The timeliness of D.M.'s peremptory challenge to the Referee turns upon the validity of the “all purpose assignment” to the Referee. The controlling statute provides a referee “shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge.” (Welf. & Inst.Code, § 248, italics added.) Consequently, the presiding judge of the juvenile court lacks the authority to assign a delinquency matter to a referee “for all purposes including trial.”

Because there was no valid “all purpose assignment” in the instant matter, and because the Referee had not yet made “a determination of contested fact issues relating to the merits” (§ 170.6, subd. (a)(2)), D.M.'s challenge to the Referee, made more than five days before the date set for his competency hearing, was timely. ( Ibid.) Therefore, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

D.M., born in 1994, is the subject of a wardship petition (Welf. & Inst.Code, § 602), wherein he was accused of violating Penal Code section 241.6 (assault on a school employee) and Penal Code section 148, subdivision (a)(1) (unlawfully resisting a peace officer).

On December 9, 2009, D.M. was arraigned on the charges before the Referee. ² At a pretrial conference on April 19, 2010, the Referee heard and granted D.M.'s Pitchess motion.³

On July 26, 2010, the Referee declared a doubt regarding D.M.'s mental competence and set the matter for a competency hearing to be held October 14, 2010.

On October 5, 2010, nine days before the competency hearing, D.M. filed an affidavit of prejudice (§ 170.6, subd. (a)(2)), asserting a peremptory challenge to the Referee.⁴

On October 14, 2010, the Referee denied the challenge as untimely. The basis of the denial was that the affidavit of prejudice had to be filed within 10 days of the arraignment or initial assignment. The Referee's rationale was that “Judge Michael Nash is the supervising judge of the juvenile court here in Los Angeles County in which he signs an order that assigns us for all purposes.” ⁵ The Referee added, “if you decide to take a writ on the matter I welcome the wisdom of the appeals courts.”

On October 22, 2010, D.M. filed an application for rehearing (Welf. & Inst.Code, § 252) of the Referee's ruling that his peremptory challenge was untimely. The application was denied October 26, 2010.

On November 3, 2010, D.M. filed the instant petition for writ of mandate, seeking to overturn the Referee's October 14, 2010 denial of his peremptory challenge. On November 16, 2010, this court summarily denied the petition.

D.M. then filed a petition for review. On January 12, 2011, the Supreme Court granted the petition for review and transferred the matter back to this court with directions to vacate our order denying the petition for writ of mandate and to issue an alternative writ to be heard before this court when the proceeding is ordered on calendar.

In compliance, this court issued an alternative writ.

CONTENTIONS

D.M. contends he filed a peremptory challenge to Referee Kesler under section 170.6 in a timely manner, entitling him to writ relief.

The People, in their return to the petition for writ of mandate, concede D.M.'s peremptory challenge to the Referee was timely, in that a referee in a juvenile delinquency case cannot be assigned for all purposes. However, the People contend the instant petition for writ of mandate is untimely and therefore should be denied.

DISCUSSION

1. Procedural issues.

a. The superior court has standing to oppose the instant petition.

As a preliminary matter, we address the propriety of the superior court's opposition to the petition for writ of mandate.

In response to the alternative writ issued by this court, which specifically requested the superior court to show cause why a peremptory writ of mandate should not issue, Court Counsel, on behalf of respondent Superior Court of Los Angeles County, filed an opposition to D.M.'s petition for writ of mandate.

D.M. filed a motion to strike the opposition, contending the superior court lacks standing to participate in writ matters involving judicial disqualification.

Case law recognizes that “ [e]xcept where the issues involve the trial court's procedures rather than the litigation in which the issues arise, it is inappropriate for trial judges to make their voices heard in the appellate process. ( Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1016, 1018 , disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6 [103 Cal.Rptr.2d 751, 16 P.3d 166].)” (In re Wagner (2005) 127 Cal.App.4th 138, 148, 25 Cal.Rptr.3d 201, italics added; see, e.g., Shipp v. Superior Court (1992) 5 Cal.App.4th 147, 149, 152, 6 Cal.Rptr.2d 685 [respondent superior court opposed petition relating to whether family court assignment under local court policy was all purpose assignment within meaning of section 170.6].)

D.M.'s petition comes squarely within said exception. His petition challenges the validity of the Los Angeles Superior Court's practice of assigning juvenile court referees “for all purposes including trial,” and involves the deadline for challenging such referees pursuant to section 170.6. Because the petition is directed at the trial court's operating procedures, rather than being limited to the narrow question of Referee Kesler's disqualification, the superior court has standing to oppose the petition. Further, input from the superior court is helpful to this court in arriving at a reasoned decision in the matter.

b. D.M.'s petition for writ of mandate is timely because there was no service of written notice of entry of the October 14, 2010 order.

The People contend the instant petition for writ of mandate is untimely because it was filed November 3, 2010, twenty days after the Referee denied D.M.'s section 170.6 challenge. We disagree, concluding the instant petition is timely.

The controlling statute, section 170.3, states in pertinent part at subdivision (d): “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification. If the notice of entry is served by mail, that time shall be extended as provided in subdivision (a) of Section 1013.” (§ 170.3, subd. (d), italics added; see, e.g. Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75, 68 Cal.Rptr.3d 566 [petition untimely in that it was filed “almost two months after petitioner was served written notice of entry of the order” striking the statement of disqualification]; see generally Eisenberg, Horvitz & Wiener, Cal. Practice Guide, Civil Appeals & Writs (The Rutter Group 2010) § 15:126, p. 15–59.) Thus, it is “service of written notice of entry of the court's order determining the question of disqualification” which commences the period for seeking review by way of a petition for writ of mandate. (§ 170.3, subd. (d).)

Here, at the October 14, 2010 hearing, the Referee denied the section 170.6 challenge as untimely. However, there is nothing to show service of written notice of entry of said order. The October 14, 2010 minute order has a box on line 41 to be checked next to the words “Written notice served.” However, that box is not checked.

In the absence of any showing of service of written notice of entry of the October 14, 2010 order, we reject the People's contention the instant petition for writ of mandate, filed 20 days after the trial court denied the section 170.6 challenge, is untimely.⁶

c. Standard of review.

We review the trial court's denial of the section 170.6 challenge for an abuse of discretion. A trial court “abuses its discretion when it erroneously denies as untimely a section 170.6 challenge.” ( Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39, 42 Cal.Rptr.3d 471( Daniel V.).)

2. Section 170.6; general principles.

“The Legislature has enacted detailed procedural statutory requirements regarding the time during which an affidavit to disqualify a judge may be filed. (§ 170 et seq.) Any superior court policy or practice that is in conflict with those statutory time provisions is void. [Citations.]” ( Motion Picture & Television Fund Hospital v. Superior Court (2001) 88 Cal.App.4th 488, 492, 105 Cal.Rptr.2d 872; accord Daniel V., supra, 139...