People v. Broxson

• Decision Date: 21 March 1991
• Docket Number: No. C008806,C008806
• Citation: 228 Cal.App.3d 977,278 Cal.Rptr. 917
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Royce Everett BROXSON, Defendant and Appellant.

Page 917

278 Cal.Rptr. 917

228 Cal.App.3d 977

The PEOPLE, Plaintiff and Respondent, v. Royce Everett BROXSON, Defendant and Appellant.

No. C008806.

Court of Appeal, Third District, California.

March 21, 1991.

Review Denied May 30, 1991.

Joseph B. de Illy, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp and Daniel D. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Shirley A. Nelson, Supervising Deputy Atty. Gen., Laura I. Heidt, Clayton S. Tanaka, and Janet G. Bangle, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Defendant appeals from the judgment and sentence imposed following his conviction (by negotiated plea) of second degree burglary. (Pen.Code, §§ 459, 460.)

In the trial court, defendant made a motion to peremptorily disqualify the sentencing judge pursuant to Code of Civil Procedure section 170.6. (All further statutory references are to the Code of Civil Procedure.) ¹ The trial court struck the disqualification motion on the ground it was untimely. Defendant sought no relief by way of writ from the denial of the disqualification. However, on appeal, defendant now contends the sentencing judge erroneously failed to disqualify himself.

Subdivision (d) of section 170.3 provides: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding."

In Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818, the Second District concluded subdivision (d) of section 170.3 is inapplicable where a peremptory disqualification has been sought pursuant to section 170.6. (Pp. 413-415, 241 Cal.Rptr. 818.)

Woodman's analysis on this point was considered and rejected by the Fourth District in Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 260 Cal.Rptr. 99 (rev. den.), where the court concluded "that section 170.3, subdivision (d) is the exclusive appellate remedy for any motions to disqualify a judge, including peremptory challenges pursuant to section 170.6" (P. 1163, 260 Cal.Rptr. 99.) It would be redundant to set out Guedalia's reasoning at length. Suffice it to say we think Guedalia has the better of the argument and we will follow it here.

Defendant's exclusive remedy for denial of his peremptory disqualification was to seek relief by way of petition for writ to this court within 10 days of notice to the parties of the decision. (§ 170.3, subd. (d); Guedalia, supra, at p. 1163, 260 Cal.Rptr. 99.) Defendant's sole claim of error is not cognizable on appeal.

The appeal is dismissed.

PUGLIA, P.J., and DAVIS, J., concur.

1 Section 170.6 provides in part: "(1) No judge ... of any superior ... court ... shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested...