Garcia v. Superior Court

Decision Date30 May 1984
Citation156 Cal.App.3d 670,203 Cal.Rptr. 290
CourtCalifornia Court of Appeals Court of Appeals
PartiesHenry GARCIA et al., Petitioners, v. The SUPERIOR COURT of Fresno County, Respondent; The PEOPLE, Real Party in Interest. F002886.

HAMLIN, Associate Justice.


Petitioners Henry Garcia and Rosie Garcia seek a writ of mandate (Code Civ.Proc., § 1085) 1 commanding the respondent superior court to vacate its order denying petitioners' motion to disqualify the Honorable Frank Creede, Jr. (§ 170, subd. (a)(5)); to allow petitioners an opportunity to challenge the Honorable Robert H. Kroninger, the judge assigned by the Chairperson of the Judicial Council to rule on petitioners' motion to disqualify Judge Creede (§ 170, subd. (e)); and to allow petitioners a full evidentiary hearing on any redetermination of their motion to disqualify Judge Creede.

Upon direction of the California Supreme Court, this court issued an alternative writ of mandate directing the respondent superior court to grant the relief sought or to show cause before this court why a peremptory writ of mandate granting such relief should not issue. The superior court elected not to grant the relief sought, thereby necessitating further proceedings in this court.

Petitioners contend they were denied their right to effectively challenge the judge assigned to their trial, Judge Creede, due to two omissions. First was the failure of Judge Kroninger, the judge assigned to hear and determine their challenge, to provide an evidentiary hearing before making his ruling. The second omission complained of is the failure of anyone to give petitioners notice of the identity of the judge assigned to hear and determine their challenge until after he had ruled. We find both of petitioners' contentions unmeritorious and deny the petition and discharge the alternative writ previously issued by this court.


Petitioners were initially arraigned on various drug-related charges in Fresno County Municipal Court on October 30, 1981. The charges involved sales of narcotics allegedly occurring on September 28 and September 30, 1981. After numerous and lengthy delays, petitioners were held to answer in superior court on February 8, 1983. Arraignment in superior court was continued several times. At the third arraignment setting defense counsel filed a motion under section 170, subdivision (a)(5), to disqualify the arraignment judge, the Honorable Stephen Henry. Judge Henry chose to disqualify himself rather than file an answer. The arraignment was continued to April 19, at which time petitioners refused to enter a plea and stood mute with counsel while the court entered a not guilty plea on their behalf. At that time motions were scheduled for May 13 and a jury trial date was set for June 20. On May 13, defense counsel obtained a continuance of the motions date from Judge Creede over the objection of the People. On the continued date defense counsel filed affidavits to disqualify Judge Creede and two other judges of the Fresno County Superior Court pursuant to the provisions of section 170, subdivision (a)(5).

Since we are concerned in this proceeding only with the challenge to Judge Creede, we will discuss only the contents of the affidavit for Judge Creede's disqualification. That affidavit alleged that Judge Creede had refused to reduce the bail set in a 1975 drug-related case involving petitioner Henry Garcia; that Judge Creede hated Henry Garcia; and that Judge Creede had a "prior reaction" to defense counsel in an unrelated case, People v. Kenneth Ray Allen, then pending in the superior court.

Judge Creede filed an answer denying disqualification for bias and/or prejudice pursuant to section 170, subdivision (d)(1), and a refusal to consent to disqualification. In his answer under oath, Judge Creede denied that he had any bias or prejudice toward petitioner Henry Garcia. He declared that, although he remembered the case in which the bail reduction request had been denied, he had not associated petitioner Henry Garcia with the defendant in that case until the identity was pointed out by defense counsel. The transcript of the bail reduction hearing attached to Judge Creede's declaration included Judge Creede's statement that, based on past experience, he considered defendants in large-volume, high-stakes drug cases to be "very high risk." Judge Creede also denied in his declaration that he had any bias or prejudice toward defense counsel as a result of defense counsel's temporary representation of Kenneth Ray Allen.

In each of his affidavits supporting the motions to disqualify Judge Creede, defense counsel included a request for "a hearing ... in accordance with law where evidence in the form of testimony and documents may be produced." After the motions were filed, the presiding judge asked defense counsel whether any judge on the Fresno County Superior Court bench would be acceptable to defense counsel to rule on the disqualification of Judge Creede. He replied that he didn't know at that time and asked for and received a further continuance of the hearing on the disqualification motions and all pretrial motions to June 21. On that day defense counsel advised the presiding judge that he would not accept any Fresno County Superior Court judge to hear the disqualification issue or any other motion, and defense counsel suggested no other judge who would be acceptable. The presiding judge then informed defense counsel he would refer the matter of disqualification to the Chairperson of the Judicial Council.

On June 28, Judge Kroninger "having been assigned by the Chief Justice of the California Supreme Court and Chairman of the Judicial Council to hear and rule on [petitioners'] motion for disqualification of Honorable FRANK J. CREEDE, Jr.," denied petitioners' motion on the basis that an insufficient showing had been made to support such disqualification. This order was filed with the respondent superior court, and about 10 days later the presiding judge assigned petitioners' case to Judge Creede for the setting of pretrial motions and trial. Thereupon Judge Creede ordered the pretrial motions to be set for hearing on August 2. This date was later continued to September 19 at defense counsel's request.

On August 11, defense counsel filed his petition for writ of mandate/prohibition and a request for a temporary stay with this court. This court denied the petition. Petitioners then petitioned the Supreme Court for a hearing and requested a stay of the pending trial. On November 16 the Supreme Court granted the petition for hearing and retransferred the matter to this court with directions to issue an alternative writ to be heard before this court.

I. Petitioners' right to an evidentiary hearing.

Petitioners contend the failure to afford them a hearing at which evidence could be adduced on their motion to disqualify Judge Creede constituted a denial of their constitutional right to due process of law. Article I, section 15, clause 7 of the California Constitution provides with respect to criminal defendants in pertinent part: "Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law."

Although due process of law has been recognized as an element of a fair and impartial trial, it is not a right which lends itself to a fixed and immutable definition. In the context of considering the fairness of an alleged coerced confession, the court in People v. Ditson (1962) 57 Cal.2d 415, 440, 20 Cal.Rptr. 165, 369 P.2d 714, stated: "It is our duty to protect the defendant as to these fundamental rights in full measure as against the power of the state. It is likewise equally our duty not to unnecessarily hamper the state in its properly diligent efforts to enforce the law for the protection of all persons within our jurisdiction." Similarly, the court in People v. Whittington (1977), 74 Cal.App.3d 806, 820, 141 Cal.Rptr. 742, commented: "A fair trial does not include the right of the defendant to proceedings which are planned, directed or conducted by the defendant but, rather, proceedings that will accord the accused the fullest opportunity to preserve his rights and defend against the charges [citation omitted]." Bias of the trial judge has been recognized as an aspect of trial which could deprive a criminal defendant of the fair and impartial trial to which he is entitled. (See People v. Cale (1946) 74 Cal.App.2d 689, 697, 169 P.2d 649.)

The California Supreme Court has adopted a balancing approach in determining whether a challenged procedure violates due process safeguards. In People v. Ramirez (1979) 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622 the court stated in part:

"These cases disclose that the extent to which due process relief will be available depends on a careful and clearly articulated balancing of the interests at stake in each context.... More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest including the function involved and the fiscal and...

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