People v. Hull, F013169

CourtCalifornia Court of Appeals
Citation226 Cal.App.3d 590,276 Cal.Rptr. 21
Decision Date11 December 1990
Docket NumberNo. F013169,F013169
PartiesPreviously published at 226 Cal.App.3d 590, 233 Cal.App.3d 192 226 Cal.App.3d 590, 233 Cal.App.3d 192 The PEOPLE, Plaintiff and Respondent, v. Alma Mae HULL, Defendant and Appellant.

THAXTER, Associate Justice.

We hold here that appellant's attack on a lower court order denying her peremptory challenge to the trial judge under CODE OF CIVIL PROCEDURE SECTION 170.61 is not cognizable because of section 170.3, subdivision (d). Since that attack forms the sole basis for this appeal, we will affirm.


Appellant Alma Mae Hull was charged by information with sale of cocaine base (Health & Saf.Code, § 11352). She waived arraignment and pleaded not guilty.

A pretrial conference was held before Judge Pierson on October 12, 1989. Jury trial was confirmed for October 16 at 9:30 a.m. On October 13, Judge Rose, presiding over the "department setting conference," assigned the case for trial in Judge Stone's courtroom. On October 16, Presiding Judge Cantwell granted a continuance; pretrial conference was set for October 26, and trial for October 30.

At the second pretrial conference, held before Judge Azevedo, the trial date of October 30 was confirmed. Appellant's trial counsel was not present but appellant was.

On October 27, Judge Cantwell presided over a "department setting conference" that resulted in the trial being referred to the courtroom of Judge Pierson. Neither appellant nor her trial counsel were present.

It appears that on October 30, appellant moved before Judge Cantwell to disqualify Judge Pierson (§ 170.6). Judge Cantwell denied the motion as untimely.

Appellant proceeded to trial before Judge Pierson, waiving a jury. After submission of the case, Judge Pierson found appellant guilty. 2 He also found true an alleged prior conviction, and further found that appellant was on her own recognizance pending trial on still another charge at the time of the offense.

Sentence was imposed by Judge Pierson on November 27, 1989.


The order denying appellant's section 170.6 challenge is not appealable.

The sole issue raised by appellant is that the trial court erred in denying her peremptory challenge to Judge Pierson under section 170.6. 3 However, section 170.3, subdivision (d) states as follows:

"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."

If section 170.3, subdivision (d) applies to orders arising under section 170.6, such orders are not appealable.

Two reported appellate decisions have reached directly contrary results on the same issue facing us. In Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818, the Second District squarely held that the 10-day limitations period for seeking writ review under section 170.3, subdivision (d), did not apply to orders determining peremptory challenges under section 170.6. Although the question of appealability was not presented in Woodman, the court's reasoning on the 10-day limitation issue applies equally to all of the provisions of section 170.3, subdivision (d), including the "not an appealable order" provision. Two years later, however, the Fourth District explicitly disagreed with Woodman, holding that "section 170.3, subdivision (d) prescribes the exclusive avenue of appellate relief to a party who is aggrieved by the allegedly erroneous denial of his motion to disqualify a judge ... [and] the 10-day limitation is applicable to any motion to disqualify a judge, whether the challenge is peremptory or 'for cause....' " (Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1159-1160, 260 Cal.Rptr. 99, fn. omitted, emphasis in original.)

Our analysis begins with Woodman. The court there looked at the legislative history behind the comparatively recent section 170.3 and found it "abundantly clear that the 1984 revision of the challenge for cause statute, of which [section 170.3, subdivision (d) ] is part, was to have no effect on the peremptory challenge statute [section 170.6]." (196 Cal.App.3d at pp. 413-414, 241 Cal.Rptr. 818, emphasis added.)

Interestingly, People v. Jenkins (1987) 196 Cal.App.3d 394, 241 Cal.Rptr. 827 was decided on the same day by the same court as Woodman. Presiding Justice Woods authored each opinion. Jenkins held that section 170.3, subdivision (d) makes mandamus the sole appellate remedy for review of an order denying a motion to disqualify a judge for cause under section 170.1 and ruled the issue not cognizable on appeal. (Id. at pp. 402-404, 241 Cal.Rptr. 827.) Although neither the Jenkins opinion nor the Woodman opinion mentioned the other case, the decisions clearly distinguish between motions to disqualify for cause and peremptory challenges insofar as available procedures for appellate review are concerned.

The Guedalia court relied on People v. Jenkins, supra, and disagreed with Woodman's legislative history analysis.

"Our review of that same legislative history ... reveals no intention to exclude section 170.6 determinations from the appellate review provisions enacted by the Legislature. While Woodman placed great significance on the legislative statement that the 1984 bill 'would not amend that section [i.e., section 170.6]' (196 Cal.App.3d at p. 407, 241 Cal.Rptr. 827, italics omitted), our review of the context of that statement convinces that the reference simply stated the obvious: that the 1984 legislation did not intend to abrogate the substantive right to (or the trial court procedures for interposing) a peremptory challenge, but was instead directed toward substantive and trial court procedural reforms of 'for cause' challenges. Our conclusion that appellate relief limitations are applicable to peremptory challenges does not contravene the legislative history, since application of appellate relief limitations leaves untouched the substantive and trial court procedural aspects of peremptory challenges." (211 Cal.App.3d at p. 1161, 260 Cal.Rptr. 99.)

The Guedalia court went on to discuss the policies underlying section 170.3, subdivision (d), identifying them as "judicial economy" and "fundamental fairness." The court noted that the statute "fosters judicial economy by eliminating the waste of time and money which inheres if the litigation is permitted to continue unabated, only to be vacated on appeal because the subsequent rulings and judgment were declared 'void' by virtue of the erroneously denied disqualification motion." (Id. at p. 1162, 260 Cal.Rptr. 99.) Fundamental fairness is promoted because the party complaining of the disqualification ruling must challenge it immediately and is denied the windfall of waiting to see if the ultimate judgment is favorable, in which case he reaps the benefit of that outcome, or attacking an unfavorable judgment as void, in which case he gets "two bites at the apple." (Ibid.) The court concluded:

"The twin policies promoted by section 170.3, subdivision (d) are equally compelling whether the challenge is 'for cause' or is peremptory. We perceive no reason or basis for allowing these policies to be thwarted by exempting peremptory challenges from the mandatory provisions of section 170.3, subdivision (d)." (Id. at p. 1163, 260 Cal.Rptr. 99.)

Having thus found no reason to distinguish between the two, Guedalia held "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." (Ibid.)

Although not holding that section 170.3 is the exclusive appellate remedy for denial of a section 170.6 motion, we observed in Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, at footnote 1, 257 Cal.Rptr. 458, that "[a] petition for writ of mandate and/or prohibition is the appropriate procedural device to review the denial of a challenge under Code of Civil Procedure section 170.6. (See Code Civ.Proc., § 170.3, subd. (d); ...)"

We find the Guedalia court's reasoning persuasive and elect to follow it. In our view the phrase "disqualification of a judge" in subdivision (d) of section 170.3 should not be read so narrowly as to exclude challenges under section 170.6. In addition to the reasons expressed in Guedalia, we point out that section 170.6, subdivision (7) specifically states that "Nothing in this section shall affect or limit the provisions of Section 170 ... and this section shall be construed as cumulative thereto." Clearly, then, sections 170.6 and 170 were meant to be read together.

Section 170 states that "A judge has a duty to decide any proceeding in which he or she is not disqualified." If that provision were not applicable to judges challenged by a section 170.6 motion, then under section 170 such judges continue to have a duty to decide the proceeding despite the motion. This cannot be. Sections 170 and 170.6, read together, must be interpreted as meaning that a judge properly challenged under section 170.6 is "disqualified" as the term is employed in section 170.

Section 170 and section 170.3 were enacted together. (Stats.1984, ch. 1555, §§ 2, 7.) If "disqualified" has a given meaning when used in one of the statutes, it presumably shares that meaning in the other.

"It is, however, 'an established rule of statutory construction that similar statutes should be construed in light of one...

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1 cases
  • People v. Hull, S019254
    • United States
    • United States State Supreme Court (California)
    • February 28, 1991
    ...Respondent, v. Alma Mae HULL, Appellant. No. S019254. Supreme Court of California, In Bank. Feb. 28, 1991. Prior report: Cal.App., 276 Cal.Rptr. 21. Appellant's petition for review LUCAS, C.J., and BROUSSARD, PANELLI, KENNARD, ARABIAN and BAXTER, JJ., concur. ...

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