Ng v. Superior Court

• Decision Date: 14 February 1997
• Docket Number: No. G020239,G020239
• Citation: 61 Cal.Rptr.2d 49,52 Cal.App.4th 1010
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1091, 97 Daily Journal D.A.R. 1574 Charles Chitat NG, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party in Interest.

Page 49

61 Cal.Rptr.2d 49

52 Cal.App.4th 1010, 97 Cal. Daily Op. Serv. 1091,

97 Daily Journal D.A.R. 1574

Charles Chitat NG, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent The PEOPLE, Real Party in Interest.

No. G020239.

Court of Appeal, Fourth District, Division 3, California.

Feb. 14, 1997.

Richard Schwartzberg, Gary M. Pohlson, Laguna Hills, and George Peters, Santa Monica, for Petitioner.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Assistant Public Defender, William G. Kelley and James G. Merwin, Deputy Public Defenders, Amicus Curiae for Petitioner.

Robert R. Fitzgerald, in pro. per., for Respondent.

Charlene A. Honnaka, Deputy Attorney General, Peter H. Smith, District Attorney, for Real Party in Interest.

RYLAARSDAM, Associate Justice.

We hold the trial court abused its discretion in relieving appointed counsel pursuant to a motion under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 where there was no factual showing defendant's right to the assistance of counsel would be impaired by the continued representation. Therefore, the court erred in denying defendant's subsequent motion, made within one week after the erroneous grant of the Marsden motion, to reverse the earlier order.

We also hold that a trial judge lacks standing to oppose a petition for extraordinary relief where there is no issue affecting the court's operating procedures or budget. In addition we determine that the trial judge should be disqualified in the interest of justice.

FACTS

Petitioner is charged in a multi-count information with, inter alia, 12 counts of murder, which are alleged to have occurred more than 12 years ago. The case has an extremely complicated history, involves massive amounts of evidence and has already resulted in one opinion from the California Supreme Court (Ng v. Superior Court (1992) 4 Cal.4th 29, 13 Cal.Rptr.2d 856, 840 P.2d 961).

The Orange County Public Defender was appointed to represent petitioner in September 1994 and continued to represent him until August 2, 1996. On August 2, petitioner appeared before the assigned trial judge in connection with a collateral motion, dealing with conditions of petitioner's confinement in the Orange County jail. Because of the nature of the proceedings, the People had waived their presence. To the surprise of everyone, except petitioner and the trial judge, who had received a letter from him, petitioner moved the court to relieve the public defender as his attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44. After conducting a brief hearing in chambers, the court granted the motion.

A week later, petitioner moved the court to reinstate the public defender as his counsel. The motion was supported by the declaration of Dr. Gary Dylewski, a psychiatrist, which explained that petitioner's earlier request to relieve his counsel had been motivated by petitioner's mental state. The declaration explained that petitioner had "realized he had misplaced his frustration upon those persons who were making their best efforts to prepare his defense."

The People also filed a motion to vacate the earlier order. This motion was based on the absence of notice of petitioner's motion for substitution of attorney and asserted the Petitioner sought a writ of mandate from this court, directing the trial court to vacate the order denying the motion to reinstate the public defender. We denied the petition, whereupon petitioner sought review in the California Supreme Court. That court granted the petition for review and transferred the matter to this court with directions to vacate the order denying mandate and to issue an alternative writ. We issued an alternative writ and also granted a petition filed by the public defender for leave to appear as amicus curiae.

substitution violated the People's right to a speedy trial under Article I, § 29 of the California Constitution. After another brief in camera hearing, the court denied the request to vacate the earlier order.

After we issued the alternative writ, the trial judge filed a return and a declaration explaining the reasons for his decision. Petitioner moved to strike the return and declaration on the basis that the trial court lacks standing to contest these proceedings. The prosecutor, real party in interest, did not respond to the petition, but did appear for oral argument.

DISCUSSION

The Trial Judge's Return on Behalf of Respondent

After we issued our alternative writ, the trial judge filed a return to the petition. Petitioner moved to strike this return. As in most writ proceedings in appellate courts, the superior court is the nominal respondent. Does this give that court or a judge of that court standing in the proceedings before us?

In Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 22 Cal.Rptr.2d 504, 857 P.2d 325, our Supreme Court considered a petition for a writ of mandate brought by a municipal court, seeking to set aside a superior court order granting a criminal defendant's habeas corpus petition. The latter petition had been granted on grounds the preliminary hearing had been conducted by a court commissioner rather than by a judge of the municipal court. The Supreme Court refused to consider the issue of the power of a commissioner to conduct a preliminary hearing on the merits. Relying on Municipal Court v. Superior Court (Swenson) (1988) 202 Cal.App.3d 957, 249 Cal.Rptr. 182, involving a similar issue of the standing of a court to initiate a writ proceeding, the Gonzalez court held the petitioner lacked standing to bring the action. In so holding, the court quoted Swenson: " 'In our common law judicial system we rely upon a separation of roles to bring about proper results. The courts' role is to decide cases; the parties' role is to bring cases before the courts. If a party is aggrieved by the ruling of a lower court, he is provided with an avenue of appeal to a higher tribunal by means of an orderly prescribed procedure, ... A municipal court may have reason to complain of the treatment of one of its decisions, or its procedures, at the hands of the reviewing court. Nevertheless, the premise under which the judiciary operates is straightforward: if no individual party finds it worth his or her while to champion the cause and seek judicial review, then review will not occur.' " (Municipal Court v. Superior Court (Gonzalez), supra, 5 Cal.4th at p. 1131, 22 Cal.Rptr.2d 504, 857 P.2d 325.)

The apparent premise underlying the court's decisions in Gonzalez and Swenson is that the court should not assume a partisan role. As noted in 8 Witkin, California Procedure (3d ed. 1985) Extraordinary Writs, section 148, page 789, "if certiorari, prohibition or mandamus is sought against a court, the respondent judge, as in an appeal from a judgment, is a neutral party in the controversy between the plaintiff and defendant in the main action. The adverse party in that action is the real party in interest, ..." Such neutrality is also demanded by the duty of impartiality imposed upon judges by the California Code of Judicial Ethics (see Canon 3).

The duty of impartiality and neutrality does not, however, necessarily preclude a respondent court from contesting a petition for extraordinary writ under all circumstances. For example, Witkin notes, "In rare cases, the individual judge may be the real respondent; e.g., where prohibition is sought to prevent a disqualified judge from hearing a matter." (8 Witkin, Cal. Procedure "On occasion, when the significant effect of an issue is on a trial court's procedures rather than on the litigation in which the issue arises, the real party in interest may not even contest an opposing party's petition for writ of mandate or prohibition challenging a trial court's ruling. The respondent court is then the sole party opposing the petition for extraordinary relief. (See, e.g., Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501 [104 S.Ct. 819, 78 L.Ed.2d 629] [magistrate's power to close preliminary hearing]; Townsend v. Superior Court (1975) 15 Cal.3d 774 [126 Cal.Rptr. 251, 543 P.2d 619] [court's power to continue case when defense counsel has a calendar conflict]; Shipp v. Superior Court (1992) 5 Cal.App.4th 147 [whether family court assignment under local court policy is an 'all purpose' assignment under Code Civ. Proc., § 170.6]; Flores v. Superior Court (1991) 226 Cal.App.3d 797 [effect of policy memorandum designating certain courts as 'direct calendar courts' on challenges under Code Civ. Proc., § 170.6]; Huffman v. Superior Court (1990) 219 Cal.App.3d 1480 [court's obligation to provide indigent defendant with trial transcript after first trial ends in hung jury].)

                (3d ed. 1985) Extraordinary Writs, § 149, p. 791, citing Central Pac.  Ry. Co. v. Superior Court (1931) 211 Cal. 706, 707, 296 P. 883;  Calhoun v. Superior Court (1958) 51 Cal.2d 257, 260, 331 P.2d 648.)   Other cases where a court's participation in an appellate writ proceeding was accepted are collected in Justice Kennard's concurring and dissenting opinion in Municipal Court v. Superior Court (Gonzalez), supra, 5 Cal.4th at pp. 1133-1141, 22 Cal.Rptr.2d 504, 857 P.2d 325
                

"When a court does not prevail in a writ proceeding brought by a litigant attacking the validity of its procedures, it has always been permitted to seek review of the adverse ruling, either by filing a notice of appeal (if the adverse ruling was by the superior court) or by filing a petition for review in this court (if the adverse ruling was by the Court of Appeal). (See, e.g., Solberg v. Superior Court (1977) 19 Cal.3d 182 [137 Cal.Rptr. 460, 561 P.2d 1148] [municipal court appeal from order compelling it to disqualify trial judge under Code Civ. Proc., § 170.6]; Lekse v. Municipal Court (1982) 138 Cal.App.3d 188 [municipal court appeal from order that small claims court must consolidate related claims,...