Fraijo v. Superior Court

• Citation: 34 Cal.App.3d 222,109 Cal.Rptr. 909
• Court: California Court of Appeals
• Decision Date: 12 September 1973
• Parties: Anthony Leroy FRAIJO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 42124.

Page 909

109 Cal.Rptr. 909

34 Cal.App.3d 222

Anthony Leroy FRAIJO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

PEOPLE of the State of California, Real Party in Interest.

Civ. 42124.

Court of Appeal, Second District, Division 2, California.

Sept. 12, 1973.

Raymond C. Youngquist, Andrews, Youngquist, McDaniel & Plotkin, Pomona, for petitioner.

John H. Larson, Acting County Counsel, Jeffrey H. Nelson, Deputy County Counsel, Los Angeles, for respondent.

ROTH, Presiding Justice.

Petitioner, charged in two separate informations with two counts of burglary (Superior Court of Los Angeles County file) (case # A514954), and two counts of violation of section 11501 of the Health and Safety Code and two counts of violation of Health and Safety Code section 11503 (case # A513381), seeks prohibition to prevent August J. Goebel from presiding at his trial, asserting he has filed a timely motion pursuant to Code of Civil Procedure section 170.6 (hereinafter referred to as section 170.6) to disqualify Judge Goebel.

Petitioner was arraigned in case No. A514954 on October 17, 1972 before Judge Goebel pursuant to case assignment procedures that were in force in the East Branch of the Los Angeles County Superior Court, which procedures do not appear to involve a so-called 'Master Calendar Court' (see Sambrano v. Superior Court, 31 Cal.App.3d 416, 107 Cal.Rptr. 274 (filed March 30, 1973)), and pleaded not guilty.

Thereafter, on the same day in a pretrial conference a plea bargain was negotiated with tentative approval of the court and the case was on Judge Goebel's calendar for plea and disposition on January 8, 1973.

On November 30, 1972, defendant was arraigned before Judge Goebel in case No. A513381. He pleaded not guilty and the matter was continued to December 13, 1972 for a pretrial hearing and trial setting. On that latter date the case was set for trial on January 19, 1973 and a pretrial hearing was set for january 3, 1973.

On December 29, 1972, defendant moved to advance both cases to that date, whereupon another plea bargain was negotiated and defendant pleaded guilty to one count of each information. A probation and sentence hearing was set for January 23, 1973, which hearing was later continued to January 27, 1973.

On January 26, 1973, Judge Goebel, by written order, withdrew from the plea bargain, set aside defendant's pleas of guilty, entered not guilty pleas and set the matter for trial before him on January 30, 1973. Defendant on the latter date for the first time filed a section 170.6 declaration of prejudice. The case trailed to January 31, 1973, and was continued to March 7, 1973. Defendant filed a second section 170.6 declaration on February 7, 1973. Judge Goebel ruled as to each of defendant's motions that they were not timely for the reason that 'The Court had previously made a determination of factual issue.'

Section 170.6 provides in relevant part: 'Where the judge . . . assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date. . . . In no event shall any judge . . . entertain such motion if it be made . . . after trial of the cause has . . . commenced. . . . The fact that a judge . . . has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided.'

On December 29, 1972, when defendant entered his pleas of guilty, the five-day limitation had not yet come into play. Case No. A514954 had not yet been set for trial and case No. A513381 was set for trial January 19, 1973, considerably more than five days off. The entry of the guilty pleas had the effect of vacating the trial setting in case No. A513381, and obviating any trial setting in case No. A514954.

When the court on January 26, 1973 withdrew from the plea bargain and reinstated the not guilty pleas and set the trial some four days hence, the defendant, insofar as the time limitations of section 170.6 are concerned, was then obliged to file his motion prior to commencement of the trial. This he did and if the trial had been set before anyone other than Judge Goebel on that date, to wit, January 26, 1973, there can be no question that defendant's action would have been timely.

Thus, the question is whether Judge Goebel's tentative acceptance and later rejection of the plea bargain constituted a 'determination of contested fact issues relating to the merits' of the case and involves a construction of section 170.6 and Penal Code section 1192.5.

We have concluded that there was no contested fact issue and that the writ should issue.

Kohn v. Superior Court, 239 Cal.App.2d 428, 48 Cal.Rptr. 832, holds that a judge in ruling on a motion under section 995 of the Penal Code does not make a determination of a factual issue relating to the merits of the case. Kohn reasons at pages 430 and 431, 48 Cal.Rptr. at page 833 that such a ruling '. . . merely reviews the evidence. It does not substitute its judgment as to the weight thereof . . . nor does it resolve conflicting factual contentions . . . The function . . . involves the determination of a legal issue only. . . . 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 it lost.'

A plea bargain is concerned only with the sentence to be imposed in exchange for defendant's plea of guilty which plea admits all of the facts necessary to establish guilt. Sentencing is addressed to the discretion of the trial judge and involves an evaluation of the circumstances surrounding the offense. Such an evaluation is not a determination of a factual issue on the merits as envisioned by section 170.6. A judge's evaluation of admitted facts, to determine whether to refuse or accept a proposed plea bargain, does not involve a fact finding function in respect of an issue to be tried.

Our ruling is based on the express provisions of section 170.6 and cases interpreting those provisions. We express no opinion on whether the rejection of a proposed plea bargain would provide a defendant with grounds to disqualify the judge under section 170, subd. 5. That, of course, would permit a defendant to 'shop' from judge to judge until he found one who would accept the proffered bargain. It is clear under section 170.6 that a defendant is entitled to make one motion and this limitation should prevent any practice which encourages 'judge shopping.'

A peremptory writ of mandate will issue as prayed for.

FLEMING. J., concurs.

COMPTON, Associate Justice (concurring and dissenting).

I concur in the holding of the majority that the filing of the motion and declaration of prejudice was timely. However, I would deny the petition on the grounds that the supporting affidavit filed by the defendant is insufficient for reasons that will be discussed Infra.

The majority opinion, which is filed today, is substantially identical with the opinion originally filed by this court on June 19, 1973. Subsequent to the filing of that original opinion we granted a rehearing and invited the parties to present points and authorities on the constitutionality of Code of Civil Procedure section 170.6. Briefs have been received from the superior court and from the petitioner.

Petitioner advised that a plea of guilty has been entered in the superior court and contends that the matter is moot and should be dismissed. I disagree. '(I)f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an evant occurring during its pendency would normally render the matter moot.' (In re William M., 3 Cal.3d 16, at p. 23, 89 Cal.Rptr. 33, at p. 37, 473 P.2d 737 at p. 741.)

I assume that the majority in filing its opinion of today also rejects the contention that the matter is moot but by declining to discuss the constitutionality of section 170.6 impliedly finds that the statute is constitutional and that the petitioner's affidavit was sufficient. From this latter implied holding I dissent.

The affidavit filed by petitioner stated simply that '. . . the judge before whom the . . . action is pending is prejudiced against the interests of the party so that declarant (petitioner) cannot or believes that he cannot have a fair and impartial trial or hearing before such judge.'

A brief history of the statute in question is in order. In 1937, the Legislature enacted what was then Code of Civil Procedure section 170.5, which provided in pertinent part 'that any party or his attorney to any cause or proceeding of any nature pending in the superior or municipal court except the people or district attorney in a criminal case, may make and file with the clerk of the court in which the action is pending . . . a peremptory challenge in writing of the judge assigned to try or hear the cause or pending matter.' The Court of Appeal in Daigh v. Shaffer, 23 Cal.App.2d 449, 73 P.2d 927, first declared that statute unconstitutional, and in Austin V. Lambert, 11 Cal.2d 73, 77 P.2d 849, the Supreme Court agreed, characterizing the statute as an unwarranted and unlawful interference with the constitutional and orderly process of the court; stating at page 79, 77 P.2d at page 853: 'But to put in the hands of a litigant uncontrolled power to dislodge without reason or for an undisclosed reason, an admittedly qualified judge from the trial of a case in which forsooth the only real objection to him might be that he would be fair and impartial in...