Pappa v. Superior Court of Los Angeles County

• Decision Date: 23 June 1960
• Citation: 353 P.2d 311,5 Cal.Rptr. 703,54 Cal.2d 350
• Court: California Supreme Court
• Parties: , 353 P.2d 311 Carole Ann Tregoff PAPPA, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents. L. A. 25894.

Page 703

5 Cal.Rptr. 703

54 Cal.2d 350, 353 P.2d 311

Carole Ann Tregoff PAPPA, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

L. A. 25894.

Supreme Court of California, In Bank.

June 23, 1960.

Jerry Giesler, Robert A. Neeb, Jr., Beverly Hills, Donald R. Bringgold and Rexford D. Eagan, Beverly Hills, for petitioner.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Ralph F. Bagley, Robert J. Lord and Harry B. Sondheim, Deputy Dist. Attys., Los Angeles, for respondent.

GIBSON, Chief Justice.

Carole Pappa and her codefendant, Doctor Raymond Bernard Finch, were each charged with murder and conspiracy to commit murder. The action was originally set for trial before Judge James G. Whyte, but he was disqualified upon a challenge by the People pursuant to the provisions of section 170.6 of the Code of Civil Procedure. ¹ Judge Clement D. Nye, who was then assigned to hear the case, was disqualified upon a challenge by Finch under the same section, and the action was finally tried before Judge Walter R. Evans. The jury was unable to agree, and a mistrial was declared.

The action was set for retrial and is now pending before Judge LeRoy Dawson. Thirteen days prior to the date fixed for commencement of the retrial Mrs. Pappa, who had not previously attempted to exercise any rights under section 170.6, moved to disqualify Judge Dawson pursuant to the provisions of that section. The motion was denied, Mrs. Pappa commenced this proceeding to prevent Judge Dawson from hearing her case, and we granted an alternative writ of prohibition.

Section 170.6 provides that no judge shall try any action or special proceeding when it is established by an affidavit that he is prejudiced against a party or attorney so that the party or attorney cannot, or believes he cannot, have a fair and impartial trial before such judge. Facts showing prejudice need not be alleged or proved, and, where a timely motion to disqualify is made, supported by an affidavit alleging prejudice, the case or matter, without any further act or proof, must be assigned to another judge for trial or hearing.

Subdivision (3) of section 170.6 provides in part: 'Under no circumstances shall a party or attorney be permitted to make more than one such motion in any one action * * *; and in actions * * * where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action * * * only one motion for each side may be made in any one action.' (Italics added.) A criminal action is defined as the 'proceeding by which a party charged with a public offense is accused and brought to trial and punishment * * *.' Pen.Code, § 683; see also Code Civ.Proc. § 22. It is clear that Finch's motion to disqualify Judge Nye must be considered as having been made in the pending 'action' and that the retrial will not be a new 'action' within the meaning of the italicized language of subdivision (3).

The question is whether the codefendants constitute a 'side' as that term is used in subdivision (3). If so, Mrs. Pappa will not be entitled to have Judge Dawson disqualified since Finch had previously exercised a challenge under section 170.6. In Johnson v. Superior Court, 50 Cal.2d 693, 329 P.2d 5, we recognized that although there are ordinarily two 'sides' to a case, there may be more if codefendants have substantially adverse interests. The reasoning in Johnson, a civil case, is equally applicable to a criminal prosecution.

The burden is upon Mrs. Pappa to establish that her interests are substantially adverse to those of her codefendant, Finch. She, of course, is in a better position than the prosecution to acquaint the court with the basis of her claim, and the obligation to do so does not subject her to undue hardship. In this connection it must be remembered that until the enactment of section 170.6 in 1957 a party seeking to disqualify a judge on the grounds of bias had to allege and prove the facts relied upon to establish prejudice. That procedure, which is contained in section 170 of the Code of Civil Procedure, remains available in a criminal as well as a civil action. Section 170.6, as we have seen, relieves a party of the necessity of specifying the facts relied upon as the basis of disqualification upon the ground of bias, and it thus extends a special privilege subject to the conditions set forth in the section. As pointed out in Johnson v. Superior Court, these conditions were imposed as safeguards designed to minimize abuses of the privilege. 50 Cal.2d 693, 697, 329 P.2d 5. If for some reason a party does not desire to assume the burden of establishing that he comes within these conditions, he may pursue the alternative procedure under section 170 of alleging and proving the facts upon which he relies to establish prejudice.

The showing made by Mrs. Pappa is very meager. She asserts that a conflict of interest between herself and Finch exists because the record of the first trial will show that it has always been the theory of the People that Finch was the principal and that her role was that of an aider and abettor. She states that in view of the widespread interest in her case the court must have some knowledge of it and that the transcript of the first trial will show that her position is substantially adverse to that of Finch. It also appears that she made a motion for a separate trial, which was denied, and that she opposed a motion for change of venue made by Finch.

It is not claimed that this is a case where each defendant is attempting to avoid conviction by shifting responsibility for the homicide to the other, but, to the contrary, under Mrs. Pappa's assertions with respect to the theories of the prosecution, it appears likely that Finch's defenses against the charge that he was the principal would support her defense against the charge of aiding and abetting. Although differences of opinion between codefendants as to procedural matters such as the desirability of a change of venue or a separate trial might, under some circumstances, show the existence of substantially adverse interests, it should not be assumed that this is true in the absence of a showing of what the circumstances are and how they affect each of the parties and the relationship between them. Mrs. Pappa does not give her reasons for seeking a separate trial or for opposing Finch's motion for change of venue, and it does not appear that these matters were sufficiently important to amount to a substantial adverse interest. Moreover, the prosecution asserts, and it is not disputed, that no evidence was introduced before Judge Dawson to establish that a conflict of interest existed between the two defendants. A showing on this matter should have been made by the moving party in the trial court before relief was sought here.

It does not follow from the fact that Mrs. Pappa and Finch are represented by separate counsel that their interests are adverse. The cases of People v. Robinson, 42 Cal.2d 741, 745 et seq., 269 P.2d 6, and People v. Lanigan, 22 Cal.2d 569, 576-577, 140 P.2d 24, 148 A.L.R. 176, which involved court-appointed attorneys and the constitutional right to counsel, are not analogous to the situation here. In each of those cases the trial court, over objection, forced upon a defendant an attorney who represented a codefendant, and we held that every defendant is entitled to the undivided loyalty and untrammeled assistance of counsel of his own choice entirely apart from any diversity of interests. A different situation is presented where, as here, a limited privilege is involved which would not be available in the absence of a special statute and cannot be exercised except in accordance with that statute. The privilege conferred by section 170.6, unlike the right to counsel, may be exercised by more than one codefendant only where they have substantially adverse interests, and obviously the mere fact that they choose to be represented by separate counsel does not show that such a conflict of interests exists. Nor does the fact that an attorney may exercise the privilege under section 170.6 mean that the limitation of one motion to each 'side' may be ignored and that the attorney may challenge a judge irrespective of whether disqualification of another judge has previously been obtained by his client or by a codefendant whose interests are not adverse to those of the client. Other wise, a party who exercised a challenge could continue to obtain disqualifications endlessly by the simple expedient of changing attorneys.

Under all the circumstances it seems clear that Mrs. Pappa has not established that she has interests substantially adverse to those of Finch.

Particular emphasis is placed by Mrs. Pappa on the fact that Finch and the prosecution have each been permitted to disqualify a judge, and she contends that the constitutional guarantees of fairness and equality require that she also be permitted to do so. A similar argument was made in Johnson v. Superior Court, 50 Cal.2d 693, 700, 329 P.2d 5, 10, where it was said as to the provision limiting each 'side' to one challenge: 'The Legislature could reasonably determine that this limited restriction was justified in order to prevent the undue delays which could otherwise occur, and we hold that section 170.6 does not arbitrarily discriminate against multiple parties.'

The alternative writ is discharged, and a peremptory writ is denied. This order is final forthwith.

TRAYNOR, McCOMB, WHITE and DOOLING, JJ., concur.

Appendix

Section 170.6 of the Code of Civil Procedure reads as follows:

'(1) No judge of any superior, municipal or justice court of the State of Dalifornia shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter...