Jose S., In re

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

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.

[78 Cal.App.3d 623]

Page 310

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 [78 Cal.App.3d 624] 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 [78 Cal.App.3d 625] 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,

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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 [78 Cal.App.3d 626] 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...