Paredes v. Superior Ct Of L.A. County

• Decision Date: 22 December 1999
• Citation: 77 Cal.App.4th 24,91 Cal.Rptr.2d 350
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 1999) KEVIN A. PAREDES,Petitioner, v. ; THE PEOPLE, Real Party in Interest. B134960 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE Filed

91 Cal.Rptr.2d 350 (Cal.App. 2 Dist. 1999)

KEVIN A. PAREDES,Petitioner,

v. THE SUPERIOR COURT OF LOS ANGELES COUNTY,Respondent;

THE PEOPLE, Real Party in Interest.

B134960

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

DIVISION ONE

Filed 12/22/99

ORIGINAL PROCEEDING, petition for a writ of mandate, L. Jeffrey Wiatt, Judge. Writ issued.

(Super. Ct. No. PA033609)

James H. Barnes for Petitioner.

Lloyd W. Pellman, County Counsel, and Gordon W. Trask, Principal Deputy County Counsel, for Respondent.

CERTIFIED FOR PUBLICATION

No appearance for Real Party in Interest.

In a criminal case, one of two defendants timely moved to disqualify the trial judge and the cause was reassigned. (Code Civ. Proc., 170.6.) When the last day on which the case could be tried arrived and the prosecutor was unable to proceed, the case was dismissed (Pen. Code, 1382, 1387), then refiled (Pen. Code, 1387) and assigned to the same judge to whom it had been previously reassigned. The other defendant then moved to disqualify the judge, who denied the motion on the ground that the refiled action is a "continuation" of the dismissed action. We conclude otherwise.

FACTS

In July 1998, a complaint was filed charging Anthony M. Halas with murder.¹ Halas was held to answer, an information was filed (case number PA030591), and the case was assigned to the Honorable Ronald S. Coen. Halas pled not guilty. On October 8, Halas moved to disqualify Judge Coen (Code Civ. Proc., 170.6)² and the case was reassigned to the Honorable L. Jeffrey Wiatt. On October 9, a complaint was filed charging Kevin A. Paredes with the same murder charged against Halas. Paredes was held to answer, an information was filed (case number PA031243), and the case was assigned to Judge Wiatt. Paredes pled not guilty. Over Paredes's objection, Judge Wiatt joined the cases against Paredes and Halas.

On June 28, 1999, both defendants announced ready but the prosecutor was unable to proceed. Paredes and Halas moved for dismissal (Pen. Code, 1382, 1387) and their motions were granted. Later the same day, a complaint was filed (case number PA033609) alleging the same murder against Paredes and Halas, with an added special circumstance allegation (drive-by shooting). (Pen. Code, 190.2, subd. (a)(21).) A preliminary hearing was held, at the conclusion of which the magistrate dismissed the special circumstance allegation but held Paredes and Halas to answer on the murder count.

On July 29, an information was filed charging Paredes and Halas with the murder and the ancillary drive-by special circumstance allegation. Without objection from either defendant, the case was assigned to Judge Coen. After Paredes and Halas pled not guilty, Judge Coen transferred the case to Judge Wiatt for trial. Paredes then filed a motion to disqualify Judge Wiatt ( 170.6), who struck the affidavit on the ground that the current case is a "continuation" of the previous case in which Halas had already filed a motion pursuant to section 170.6. In response to a petition filed by Paredes in which he asked us to issue a writ of mandate ordering Judge Wiatt to accept the affidavit as timely, we stayed trial, issued an order to show cause (to which the superior court has filed opposition, but not the People) and set the matter for hearing.

DISCUSSION

Paredes contends the refiled case is not a continuation of the previously dismissed case. We agree.

A. The Dismissal Statutes

As relevant, Penal Code section 1382, subdivision (a), provides that "[t]he court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [] (1) When a person has been held to answer for a public offense and an information is not filed against that person within 15 days. [] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment in the superior court . . . ." (Italics added.)

As relevant, Penal Code section 1384 provides that "[i]f the judge . . . directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom . . . ."

As relevant, Penal Code section 1387 provides: "(a) An order terminating an action pursuant to this chapter . . . is a bar to any other prosecution for the same offense if it is a felony . . . and the action has been previously terminated pursuant to this chapter . . . except in those felony cases . . . where subsequent to the dismissal of the felony . . . the judge or magistrate finds [there exists certain specified conditions]." (Italics added.)

As relevant, Penal Code section 1387.2 provides that "[u]pon the express consent of both the people and the defendant, in lieu of issuing an order terminating an action the court may proceed on the existing accusatory pleading. For the purposes of Section 1387, the action shall be deemed as having been previously terminated. The defendant shall be rearraigned on the accusatory pleading and a new time period . . . shall commence."

Read together, these statutes mean that a felony case once dismissed for delay can be refiled, but (subject to certain exceptions) a felony case twice dismissed for delay cannot. In short, a third or subsequent prosecution is barred. (Ramos v. Superior Court (1982) 32 Cal.3d 26, 34; Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804-1805; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, 2561, 2563 pp. 3069-3070, 3072-3073.) When the first action is terminated under this procedure and the People file a new complaint, a second preliminary hearing must be held and the evidence subjected anew to a magistrate's evaluation. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 745.) In lieu of a required dismissal and permitted refiling, the parties may agree to proceed on the existing accusatory pleading, with the action "deemed" to have been "previously terminated." (Pen. Code, 1387.2.) These statutes exist to protect a defendant's right to a speedy trial and must be construed to serve that overriding purpose. (People v. Schlosser (1978) 77 Cal.App.3d 1007, 1010-1011.)

B. Section 170.6

As relevant, section 170.6 provides: "(1) No judge . . . shall try any civil or criminal action . . . that involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge . . . is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action . . . . [] (2) Any party to or any attorney appearing in any such action . . . may establish this prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury . . . that the judge . . . before whom the action . . . is pending . . . is prejudiced against any such party or attorney . . . so that the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge . . . . In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be. 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. [] A motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. Notwithstanding paragraph (3) of this section, the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party's attorney has been notified of the assignment.

"(3) If the motion is duly presented and the affidavit or declaration under penalty of perjury is duly filed . . . , thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge . . . to try the cause or hear the matter. . . . Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action . . . pursuant to this section; 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 . . . . [] (4) Unless required for the convenience of the court or unless good cause is shown, a continuance of the trial or hearing shall not be granted by reason of the making of a motion under this section. . . ." (Italics added.)

C. The Cases

For almost fifty years, there has existed the possibility (some might say probability) that the sequence of events in this case could occur.³ For that reason, the mind boggles at the realization that, if it has happened, it has not become the subject of a published appellate decision. In the "close but no cigar" category,⁴ we have found the following cases:

In Jacobs v. Superior Court (1959) 53 Cal.2d 187, a motion to disqualify a judge was filed just before a hearing on a motion to modify a custody judgment. The Supreme Court said the disqualification motion was not timely, explaining that, since the disqualification motion must be filed before trial has commenced, it necessarily "cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings." (Id. at p. 190.) "If a disqualification were permitted under section 170.6 in matters which are continuations of a prior proceeding, it would mean that the judge who tried the case,...