Jose S., In re

• Decision Date: 14 March 1978
• Citation: 78 Cal.App.3d 619,144 Cal.Rptr. 309
• Parties: In re JOSE S., a minor. A. G. FORBES, Chief Probation Officer, Plaintiff and Respondent, v. JOSE S., Defendant and Appellant. Civ. 16276.
• Court: California Court of Appeals Court of Appeals

Page 309

144 Cal.Rptr. 309

78 Cal.App.3d 619

In re JOSE S., a minor.

A. G. FORBES, Chief Probation Officer, Plaintiff and Respondent, v. JOSE S., Defendant and Appellant.

Civ. 16276.

Court of Appeal, Fourth District, Division 1, California.

March 14, 1978.

As Modified April 5, 1978.

Appellate Defenders, Inc., under appointment by the Court of Appeal by Paul E. Bell, for defendant and appellant.

Evelle J. Younger, Atty. Gen., and Harley D. Mayfield, Deputy Atty. Gen., for plaintiff and respondent.

STANIFORTH, Associate Justice.

Seventeen-year-old Jose Luis S. was declared a ward of the juvenile court (Welf. & Inst.Code § 602) after a finding he committed an act of oral copulation on a minor female (Pen.Code § 288a). He was granted one year probation and released to his parents.

On appeal Jose Luis S. contends, inter alia, the juvenile judge improperly denied his timely motion of disqualification (Code Civ.Proc. § 170.6) and thereby rendered subsequent proceedings and the decision null and void.

The victim, Regina G., testified a boy came running through the field toward her, flung her to the ground, held her there for a period of a half hour to an hour and orally copulated her. The victim described her assailant to the investigating officer as a young Indian or Mexican, approximately 5'5 tall and weighing approximately 140 pounds. The victim reported "about a half hour or an hour" of assaultive activities on the ground but the officer observed "the victim's clothing did not appear disarranged nor soiled from lying on the ground." The investigating officer concluded in his report the "crime may not have been committed." Some days after the event, the victim pointed out Jose Luis S. (a 5'11 , 196 pound, Mexican youth) as her assailant.

At the time of the filing of the petition seeking to have Jose Luis declared a ward of the juvenile court (May 17, 1976) the Superior Court of Imperial County consisted of three departments. Juvenile matters were handled in department one, a trial department in which Judge Kirk usually presided. Various judges (as the record here reflects) handled the juvenile matters in department one.

At a detention hearing May 19 Judge Kirk released Jose Luis to the custody of his parents and set the jurisdictional hearing for June 9. On June 9 Judge Kirk reset the jurisdictional hearing for June 23 in department one. On that date, the minor, counsel and Judge Kirk conferred in chambers with a reporter present. At that in-chambers hearing, Judge Kirk permitted the filing, without objection from the deputy district attorney, of a polygraph examination exonerating Jose Luis of the sex offense. Upon the deputy district attorney's representation the victim was also willing to take a polygraph test, Judge Kirk directed such test be given and continued the matter to July 14, at 9:00 a. m. in department one "for jurisdiction hearing." Judge Kirk stated he would not be present on that date but directed all witnesses to return.

On July 14 Judge Gillespie presided in department one. The minutes reflect the jurisdictional hearing was again continued to September 15 at 9:00 a. m. in department one. On August 31 counsel for Jose Luis filed an appropriate motion and affidavit under Code of Civil Procedure section 170.6 to disqualify Judge Kirk. Judge Kirk summarily denied the motion on August 31 1976. The grounds upon which the disqualification was denied are not known. The reason? No reporter was present at the disqualification hearing if one was held.

Code of Civil Procedure section 170.6 provides, in essence, any party or attorney to a civil or criminal action or juvenile proceeding may make an oral or written motion to disqualify the assigned judge, commissioner or referee, supported by an affidavit to the effect the judge is prejudiced against such party or attorney or the interest thereof so that the client cannot or believes he cannot obtain an impartial trial. There are strict statutory limits on the timing and the number of such motions which may be filed; however, if the motion is timely and in proper form, immediate disqualification is mandatory. The judge must recuse himself without further proof and the cause must be reassigned to another judge. (McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 532, 116 Cal.Rptr. 260, 526 P.2d 268; Pamela H. v. Superior Court, 68 Cal.App.3d 916, 918-919, 137 Cal.Rptr. 612.)

Our sole and dispositive concern here is the timeliness of Jose Luis' motion. The statutory scheme determinative of timeliness of filing is found in subdivision (2) of Code of Civil Procedure section 170.6. ¹ This general rule emerges: disqualification of the judge is permitted at any time prior to the commencement of the trial which point in time is defined as:

". . . the drawing of the name of the first juror, or if there be no jury, after the making of an opening statement by counsel for plaintiff, or if there be no such statement, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced."

(Los Angeles County Dept. of Pub. Social Services v. Superior Court, 69 Cal.App.3d 407, 412, 138 Cal.Rptr. 43; see footnote 1, (c).)

There are two exceptions to the primary right to challenge the judge at any time before "the cause has otherwise commenced." The first exception to the general rule is the "ten day-five day" provision:

"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." (Emphasis added; see footnote 1, (a).)

The second exception is the "master calendar" exception:

"If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial." (See footnote 1, (b).)

The record of proceeding here makes the master calendar exception factually not applicable.

The fourth leg of the statutory timetable derives from the 1965 amendment to Code of Civil Procedure section 170.6 which added:

"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." (Emphasis added; see footnote 1, (d).)

The underlined language is at the heart of, reflects the motivating purpose of the 1965 amendment. This addition preserves the right of a party to disqualify a judge under Code of Civil Procedure section 170.6 notwithstanding the fact the judge had heard and determined an earlier demurrer or motion, or other matter not involving "contested fact issues" relating "to the merits" without challenge in the same cause. (See Report of Committee on Administration of Justice, 39 State Bar Journal 496, 497-498.)

Jose Luis' August 31 motion to disqualify Judge Kirk from hearing the jurisdictional proceeding was made more than ten days before September 15; therefore the motion was timely under the ten day-five day rule if here applicable. The assignment to department one for September 15 was the last in a series of continuances for jurisdictional hearing, each set in department one. The assignment was not to a particular judge. Various judges, including Judge Kirk, had presided over this matter. The September 15 assignment to department one was treated by the minor as an assignment to Judge Kirk. This was not an unreasonable assumption for an assignment to a particular department, not to a specific judge, is ordinarily regarded as notice a particular judge usually assigned to that department will hear the case. (People v. Roerman, 189 Cal.App.2d 150, 164, 10 Cal.Rptr. 870.) However, it is an equally valid premise, a change of judge may occur in the designated department. No certainty arises a particular judge will hear the case from the fact of assignment, only, to a department. Vacation, illness and reassignment are common occurrences and upset best laid plans. (Eagle Maintenance & Supply Co. v. Superior Court, 196 Cal.App.2d 692, 694-695, 16 Cal.Rptr. 745.)

The Attorney General contends Jose Luis' motion was untimely because it was not filed five days before the original hearing date, June 23, 1976. The Attorney General's reliance for this conclusion upon Hospital Council of Northern Cal. v. Superior Court, 30 Cal.App.3d 331, 338-339, 106 Cal.Rptr. 247, and People v. Kennedy, 256 Cal.App.2d 755, 762-763, 64 Cal.Rptr. 345, is misplaced. Both cases suggest a continuance of trial date does not extend the time for the filing of a motion under section 170.6. However, both cases factually involve assignments to...