People v. Escobedo

• Decision Date: 31 October 1973
• Docket Number: Cr. 21357
• Citation: 110 Cal.Rptr. 550,35 Cal.App.3d 32
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Toquinto ESCOBEDO, Defendant and Appellant.

Page 550

110 Cal.Rptr. 550

35 Cal.App.3d 32

The PEOPLE, Plaintiff and Respondent, v. Robert Toquinto ESCOBEDO, Defendant and Appellant.

Cr. 21357.

Court of Appeal, Second District, Division 4, California.

Oct. 31, 1973.

Rehearing Denied Nov. 15, 1973.

Hearing Denied Feb. 14, 1974.

Barry Tarlow, Los Angeles, and Lorne B. Dubin, North Hollywood, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Howard J. Schwab and Lawrence P. Scherb, II, Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

This is an appeal from a judgment upon a plea of guilty of possession of amphetamine. (Health & Saf. Code, § 11910; see new § 11377.) Appellate jurisdiction is conferred by subdivision (m) of Penal Code section 1538.5 which allows this appeal for the purpose of reviewing the ruling of the superior court in refusing to suppress evidence obtained by search and seizure.

The principal issue to be decided is whether the trial judge who denied a motion to suppress had been disqualified by a declaration filed under section 170.6 of the Code of Civil Procedure.

Pursuant to appellant's request for augmentation of the record, and in order to have the complete procedural history leading to the attempt to disqualify the judge who heard the suppression motion, we have ordered the superior court file transmitted and made a part of the record on appeal. (Rule 12a, California Rules of Court.)

An information was filed July 31, 1970 charging appellant and Mrs. Chavira jointly in two counts: count I, possession of secobarbital for sale, and count II, possession of amphetamine for sale. (Health & Saf.Code, § 11911; see now § 11378.)

On September 17, 1970 both, represented by attorney Barry Tarlow, pleaded not guilty before Judge Rosenthal in Department E in the Northwest Branch of the superior court. On that date a motion to set aside the information under Penal Code section 995 was set for hearing on October 8 in Department G and a motion under Penal Code section 1538.5 and trial were set for November 24 in Department D On October 8, both defendants being represented by attorney Tarlow, Judge Tuthill in Department G denied the motion to set aside the information under Penal Code section 995. On November 24 in Department D, where Judge Fagan was presiding, the hearing on the motion under Penal Code Section 1538.5 and the trial were continued to January 22, 1971, at the defendants' request.

On January 15, 1971, attorney Tarlow filed a document stating that the defendant Chavira 'exercises her challenge' to Judge Fagan 'pursuant to the provisions of the Code of Civil Procedure Section 170.6.' This was accompanied by an affidavit of attorney Tarlow reciting that Judge Fagan was 'prejudiced against the interests of the party so that affiant believes that she cannot have a fair and impartial hearing before such judge.'

The court treated these papers as an effective disqualification of Judge Fagan and, on January 21, the case was transferred to Department E 'for trial setting.' On January 22, Judge Ackerman, in Department E, ordered the pending motion and trial set in Department F on March 9.

On March 9 the parties appeared in Department F where Judge Hanson was presiding. Attorney Tarlow again appeared for both defendants. By stipulation the matters were continued to May 19.

On May 19 the parties and counsel appeared in Department F, Judge Hanson presiding. Attorney Robert Harris announced that he would thereafter represent Mrs. Chavira because there was a conflict of interest between the defendants. He asked time to prepare. The right to a speedy trial was again waived and the case was continued to June 30.

On June 24 attorney Tarlow filed another 'exercise of challenge,' this second one being on behalf of appellant and against Judge Hanson. It recited that 'This challenge is based on Code of Civil Procedure Section 170.6 and the attached declaration' and further stated:

'It is defendant's position that based on the attached declaration, the files and records of the case, the fact that the codefendant has retained a separate attorney because of a conflict of interest, that in fact a conflict of interest exists between the parties.'

This was accompanied by attorney Tarlow's declaration stating as follows:

'A conflict of interest exists between the defendant, Robert Escobedo, and the codefendant. This conflict results from the fact that both of them are jointly charged with the possession of the contraband found in Mrs. Chavira's home. Robert Escobedo's defense is that the contraband belongs to Mrs. Chavira. L. Thaxton Hanson, the judge before whom the above action is pending, is prejudiced against the interests of Robert Escobedo so that declarant believes that Robert Escobedo cannot have a fair and impartial hearing before such judge.'

When the case came on for hearing before Judge Hanson in Department F on June 30, the court denied any bias or prejudice and declared that the challenge was not timely filed. This colloquy ensued:

'MR. TARLOW: It is our position that they can be filed five days before trial, your Honor. I'm sure your Honor is aware of it.

'THE COURT: That's your position but the position of the Court is that that must be filed at the time of assignment to this Court in Department E, the criminal master calendar. It will be denied.'

A minute order prepared for that date also recites that the motion was denied and adds 'Court finds that the motion is not timely filed.'

Inasmuch as the court was then in the midst of a jury trial in another case, this matter was continued to August 12.

On August 12 and 13 Judge Hanson heard and denied the motion to suppress evidence. The trial and a motion to sever the trial of the two defendants were continued to August 16 in Department F On August 16, for reasons not indicated by the order, but apparently because the defendants had announced their intention to change their pleas, the matter was transferred to Department E. There, where Judge Rosenthal was presiding, the defendants changed their pleas. Appellant pleaded guilty to possession of amphetamine, a lesser offense included in count II.

Scope of the review

The effectiveness of the attempted disqualification of Judge Hanson is an issue to be decided on this appeal despite appellant's subsequent plea of guilty before another judge. Subdivision (m) of Penal Code section 1538.5 explicitly entitles a defendant to appellate review of the ruling on the motion to suppress notwithstanding the fact that the conviction is predicated upon a plea of guilty. Under the settled construction of Code of Civil Procedure section 170.6, if Judge Hanson was disqualified his ruling would be void. (Woodman v. Selvage (1968) 263 Cal.App.2d 390, 396, 69 Cal.Rptr. 687.) A review of the court's ruling on the motion necessarily includes a review of whether the record shows the judge who decided it was not legally qualified to do so.

The timeliness of the motion to disqualify

It appears that Judge Hanson denied the motion for his disqualification upon the ground that it was untimely, stating that it 'must be filed at the time of assignment to this court in Department E, the criminal master calendar.'

At the request of the Attorney General we take judicial notice that at the time in question Department E was the 'Master Calendar Department' of the northwest district of the Los Angeles superior court, as that term is used in rule 248, California Rules of Court.

The critical language in section 170.6 is in the second and third sentences of subparagraph (2):

'. . . Where the judge or court commissioner assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. . . .'

The question here to be decided is whether the 10 day-five day provision of the second sentence applies (as appellant contends) or whether the master calendar provision of the third sentence governs (as the Attorney General contends).

In exploring the interpretation of section 170.6 some reference to its history and purpose is pertinent.

The long struggle which led to the eventual enactment of section 170.6 in 1957 is referred to in Johnson v. Superior Court (1958) 50 Cal.2d 693, 329 P.2d 5. (See also 32 State Bar J. 526 (1957).) In arriving at the text which ultimately became law, the Legislature had the benefit of the experience of other states, as well as the advice of lawyers and judges who had wrestled with the problem of how to accomplish the legislative purpose without unduly impairing the efficiency of trial courts. The 1957 statute was made applicable only to civil cases, but a 1959 amendment extended its use to criminal cases.

The time limitations upon the motion to disqualify reflect the Legislature's way of accommodating the conflicting needs of the litigant and the court, where the party wishes to postpone his motion until he is fully informed, and the court requires time to make adjustments after a disqualification. The practical problems were and are self-evident.

Cases are commonly assigned to departments of the superior court, and not to judges, but such an assignment is ordinarily regarded as notice that the judge then regularly sitting in the named department will hear the matter. (See People v. Roerman (1961) 189 Cal.App.2d 150, 164, 10 Cal.Rptr. 870.) But even though a judge is assigned to a department 'permanently' or for a fixed period, the litigant cannot be certain that a change will not occur with little or no notice due to illness, vacation or a reassignment of the judge by...