Daniel V. v. Superior Court, C050566.

Citation139 Cal.App.4th 28,42 Cal.Rptr.3d 471
Decision Date02 May 2006
Docket NumberNo. C051071.,No. C050566.,C050566.,C051071.
CourtCalifornia Court of Appeals
PartiesDANIEL V., Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; The People, Real Party in Interest. Jamie K., Petitioner, v. The Superior Court of San Joaquin County, Respondent; The People, Real Party in Interest.

James Larsen, Public Defender, Vickie L. Delph and Nelson C. Lu, Deputy Public Defenders for Petitioner in No. C051071.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Assistant Attorneys General, Carlos A. Martinez, George M. Hendrickson and Stephen G. Herndon, Deputy Attorneys General, for Real Party in Interest.

SIMS, Acting P.J.

In this opinion involving petitions filed in the juvenile court by the People pursuant to Welfare and Institutions Code section 602, we hold a purported assignment of such cases "for all purposes, including trial," to a particular judge in a particular department did not constitute a valid "assignment for all purposes" sufficient to trigger the time for peremptory challenge of the judge (Code Civ. Proc., § 170.61), where the purported assignment was made in the "notice of petition" by a deputy court clerk, pursuant to an informal court practice rather than a court rule or order.

We consolidated the petitions of the two minors, Daniel V. and Jamie K., who were the subjects of unrelated proceedings. They separately petitioned this court for writs of mandate/prohibition after the juvenile court denied as untimely their peremptory challenges to Judge Barbara Kronlund. After receiving a preliminary opposition from the People in Daniel V.'s case, we issued alternative writs in both cases and orders staying further proceedings in the juvenile court.

We now discharge the alternative writs and issue peremptory writs directing the juvenile court to vacate its orders denying the section 170.6 challenges and to accept the challenges.

FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2005, the District Attorney filed in juvenile court a petition against Daniel V., alleging he committed three felony violations of Penal Code section 288, subdivision (a), lewd or lascivious act on a child under age 14. The document began with a "NOTICE," the first paragraph of which stated:

"A petition as hereafter set forth has been filed in the above entitled Court and has been set for hearing on Thursday June 23, 2005 at the hour of 9:00, in the Juvenile Court, San Joaquin County, located at [address]. The case has been assigned to Judge Kronlund, in Dept. J2 for all purposes, including trial." The underlined words were handwritten on underlined blanks in the typewritten paragraph. The "Notice" part of the document ended with a date stamp, a typewritten reference to the court clerk, and signature or signature stamp of a deputy court clerk.2 On the next line, the "PETITION" began. Copies of the first pages of the documents filed against Daniel V. and Jamie K. are attached to this opinion as an appendix, with identifying information deleted.

At the initial hearing3 on June 23, 2005 (which both sides call an arraignment), Judge Kronlund appointed counsel and set the matter for a jurisdictional hearing4 on July 19, 2005, in Department J2. Nothing in the minute order reflected an assignment for all purposes.

On July 19, 2005, Daniel V.'s case was called in Department J2, with an assigned, retired judge, Judge Richard Haugner, presiding. Daniel V. denied the allegations, and the matter was set for a contested jurisdictional hearing on August 19, 2005, in Department J2.5 Also on July 19, 2005, Daniel V. filed a peremptory challenge to Judge Kronlund.

On August 19, 2005, the case was called for the contested jurisdictional hearing before Judge Kronlund. She struck the section 170.6 peremptory challenge as untimely, on the ground that the case was assigned to her for all purposes in the notice of petition, and therefore the section 170.6 challenge should have been made no later than 10 days after the June 23, 2005, arraignment. The hearing was continued.

Daniel V. filed in this court a petition for writ of mandate/prohibition and stay of proceedings. At our request, the People filed a preliminary opposition, and Daniel V. filed a response. On October 13, 2005, we issued an alternative writ of mandate and stayed juvenile court proceedings with respect to Daniel V Daniel V.'s petition alleges, and the People admit, that the juvenile division of respondent court has two juvenile delinquency departments, and Judge Michael Coughlan regularly sits in J1, while Judge Kronlund regularly sits in J2. Daniel V.'s deputy public defender submitted a declaration stating that respondent court, in an effort to distribute the juvenile delinquency case workload evenly, instituted in October 2003 a procedure whereby, at arraignment, odd-numbered cases are assigned to J1 and even-numbered cases are assigned to J2, regardless of complexity or subject matter. Sometimes, but not always, the People's juvenile petitions would state assignments to Judge Coughlan or Judge Kronlund for all purposes. At non-contested jurisdictional hearings, most matters set for contested hearings are set in the same department unless a section 170.6 challenge is filed. The juvenile court has not conducted itself as if cases were assigned for all purposes. The two departments transfer cases between themselves and also frequently have visiting judges fill in when Judge Kronlund or Judge Coughlan is absent, without any reference to assignment for all purposes. Daniel V.'s attorney declared that a recent unrelated case was initially assigned to Judge Coughlan for a contested jurisdictional hearing, but he was presiding over another hearing, so the case was transferred to Judge Kronlund, who refused to consider the case as assigned to Judge Coughlan for all purposes and insisted on hearing the case until counsel filed a section 170.6 challenge.

Daniel V. also submitted a reporter's transcript from the hearing at which Judge Kronlund denied the section 170.6 challenge. The transcript shows Daniel V.'s attorney argued that when a case is assigned to one judge for all purposes, there is supposed to be an attempt to schedule matters so as not to conflict with the judge's absences, and, "It's not the way this court is run." Counsel said his short experience in this juvenile division was that other judges frequently heard whatever was on the calendar for that day, and Daniel V.'s case had had two judges for three appearances.

The People's return denies the foregoing allegations and submits declarations,6 including the following:

Judge Richard Vlavianos declared that in November 2003, while he was presiding judge of the juvenile court within the San Joaquin County Superior Court, he "made the decision to implement a Direct Calendar (or `one kid, one judge') system, with the concurrence of our Presiding Judge [presumably the presiding judge of the San Joaquin County Superior Court]." The purpose was to equalize the court's workload and provide consistency that would benefit the children and their families. Judge Vlavianos said, "I ran my thoughts by my Presiding Judge who agreed and authorized me to implement a one kid, one judge calendar." Judge Vlavianos met with supervisors of the Public Defender's and District Attorney's offices and told them he wanted a "one kid, one judge" system, and that odd-numbered cases would be assigned to Department J1, and even-numbered cases would be assigned to Department J2, except for drug court and certain Vehicle Code cases. The judge showed the supervisors a court calendar, effective November 17, 2003 (which said nothing about assignment for all purposes, but merely contained the word "ODD" under Department J1 and "EVEN" under Department J2, where two judges sat at the time). Judge Vlavianos declared that in early 2004 (after we issued a writ in an unrelated case due to lack of notice), respondent court began placing notices of the assignments on the courtroom doors, on counsel tables inside the courtrooms, and in the notice of petition.7 Judge Vlavianos declared: "At all times I believed that the court has the inherent power to choose the calendaring system that it believes will best serve its constituents. I am unaware of any requirement that a Rule of Court be promulgated prior to a calendaring system being put into place."

The People also submitted a declaration from Judge Kronlund, who declared she is the regular judge in Department J2, and her name appears on the courtroom door and on a nameplate on the bench. Judge Kronlund attested that "[c]ases are not frequently transferred out of one juvenile delinquency department and sent to the other. On rare occasion a visiting judge will fill in if myself or Judge Michael Coughlan is away from the court, but these instances are few and far between. It is not common practice to transfer cases out of the department to which the case has been assigned for all purposes, and that happens only rarely for good cause, if it happens at all. In this circumstance, I permit a 170.6 motion to be filed since there would have been a change in the assigned judge. This is the same practice and policy followed by our Civil Departments who are under a direct calendar system as well."

While acknowledging a different judge handled Daniel V.'s July 19, 2005, hearing, Judge Kronlund declared this was "very unusual" and was necessitated by her covering for absent Manteca court judges.8 Judge Kronlund said she has informed lawyers "on a fairly regular basis" that the cases assigned to her have been assigned for all purposes (but she did not say she informed the lawyers in either of the cases now before us).

The People also submitted a declaration from a deputy court clerk who...

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