Lyons v. Superior Court

• Decision Date: 22 September 1977
• Citation: 140 Cal.Rptr. 826,73 Cal.App.3d 625
• Parties: John Edwin LYONS, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 3525.
• Court: California Court of Appeals Court of Appeals

Page 826

140 Cal.Rptr. 826

73 Cal.App.3d 625

John Edwin LYONS, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent The PEOPLE, Real Party in Interest.

Civ. 3525.

Court of Appeal, Fifth District, California.

Sept. 22, 1977.

Melvin W. Nitz, Public Defender, and Clifford C. Kemper, Deputy Public Defender, County of Fresno, Fresno, for petitioner.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Deputy Atty. Gen., and Willard F. Jones, Jane Kirkland Fischer and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for real party in interest.

OPINION

HOPPER, Associate Justice.

Petitioner was charged with burglary and receiving stolen property. In the municipal court he entered a conditional plea of guilty to the burglary. The plea was conditioned upon the petitioner not receiving a prison sentence.

Superior Court Judge Simon Marootian refused to accept the plea when the defendant appeared in the superior court. On remand to the municipal court, the petitioner again entered a conditional plea of guilty to the burglary, the condition being that he not be initially sentenced to state prison, but that he could be sentenced to the California Rehabilitation Center. Petitioner then filed an affidavit of prejudice and moved to disqualify Judge Marootian under Code of Civil Procedure section 170.6. Petitioner now seeks a writ ordering the trial judge to grant the motion for disqualification. We grant the writ.

Real Party contends that the hearing on a plea bargain does not involve a 'contested issue of law or fact' within the meaning of the first sentence of subdivision (1) of the statute. Real Party relies on Fraijo v. Superior Court (1973) 34 Cal.App.3d 222, 224, 109 Cal.Rptr. 909, for the proposition that neither the consideration of a plea bargain or imposition of sentence is a contested issue of law or fact within the meaning of section 170.6. We disagree. The statutory language 'any civil or criminal action or special proceeding of any kind or character . . . which involves a contested issue of law or fact' is expansive language suggesting the Legislature intended the scope of the statute to be all encompassing. ¹ In addition, there are numerous questions of law that may have to be determined by the court in deciding whether or not to accept the plea bargain. For example, whether or not the plea was made freely and has a basis in fact (See Pen.Code, § 1192.5) or whether the public interest would be served ('The trial judge must reach an independent judgment as to whether the public interest in the effective administration of criminal justice will be served by granting the concessions' (ABA Project on Standards for Crim. Justice, Stds. Relating to Pleas of Guilty (1968) p. 77)), or whether the plea, if it is not to the offense charged, is to a lesser offense reasonably related to the offense charged (People v. West (1970) 3 Cal.3d 595, 611, 91 Cal.Rptr. 385, 477 P.2d 409) all potentially involve contested issues of law.

While the issues may not be disputed between the prosecution and the defense, there may well be a conflict between the defense and the court over these matters. If the judge questions whether the public interest would be served by accepting the plea, there would appear to be a contested issue just as much as if the conflict was between the prosecution and the defense. The purpose of the statute, to prevent a judge who one of the parties feels may be biased from ruling on an issue, would appear to be implemented by applying the statute to these situations.

Furthermore, in this, as in many plea bargains, the exact sentence to be given the defendant is left open to question and there is the possibility of a contest between prosecution and defense as to what that sentence should be.

Where sentencing is conducted by the same judge who accepts the plea, a motion to disqualify must be made before the plea bargain is accepted--otherwise the motion is untimely. (Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 139 Cal.Rptr. 121; People v. Barnfield (1975) 52 Cal.App.3d 210, 123 Cal.Rptr. 859.) Where a Different judge presides at the sentencing the motion may be timely. Sentencing may in a given case be a...