People v. Montalvo

• Citation: 173 Cal.Rptr. 51,117 Cal.App.3d 790
• Decision Date: 08 April 1981
• Docket Number: Cr. 38369
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Carl MONTALVO, Defendant and Appellant.

Page 51

173 Cal.Rptr. 51

117 Cal.App.3d 790

The PEOPLE, Plaintiff and Respondent, v. John Carl MONTALVO, Defendant and Appellant.

Cr. 38369.

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

April 8, 1981.

As Modified April 13, 27, 1981.

Rodney Alan Tucker, Bellflower, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

WOODS, Associate Justice.

Defendant has appealed from his conviction, following trial by jury, of violations of Penal Code sections 664 and 211, attempted robbery, and section 211, robbery. The jury found true the allegation that defendant had used a dangerous weapon in the commission of both offenses.

I

Appellant contends that the court erred in denying his motion, pursuant to Code of Civil Procedure section 170.6, to disqualify the trial judge. We agree and reject the trial court's conclusion that appellant's motion was untimely.

Appellant was arraigned in July 1979, at which time he entered a plea of not guilty. On December 20, 1979, before Honorable D. Sterry Fagan, appellant withdrew his not guilty plea and entered a plea of guilty, pursuant to a plea bargain. On April 1, 1980, the court having read a probation report on appellant, appellant was permitted to withdraw his guilty plea. The court found that it could not honor the plea bargain because of information contained in the probation report. The matter was then transferred back to Department J, Master Calendar Department, for further proceedings.

On June 16, 1980, the matter was reassigned from master calendar to Judge Fagan's court for trial, and defendant and his attorney, Deputy Public Defender Ralph Olson, appeared in Judge Fagan's court on that date. Defense counsel and the district attorney conferred in chambers with Judge Fagan for approximately one and one-half hours, discussing possible plea bargains and attempting to dispose of the matter without trial. At approximately 11:20 a. m., proceedings were held in open court. At that time, defense counsel moved, under Code of Civil Procedure section 170 (subdivision 5), to disqualify Judge Fagan for prejudice, noting that the judge had, in April, rejected defendant's plea bargain. The trial judge responded that he had no memory of the earlier proceedings with this defendant, and certainly no prejudice against him, and denied the motion.

Defense counsel then moved to disqualify the trial judge under Code of Civil Procedure section 170.6. That motion was denied as untimely. The propriety of the denial of that second motion is challenged on appeal.

Code of Civil Procedure section 170.6 provides for the filing of an affidavit of prejudice in order to disqualify a trial judge prior to trial. The section provides in part: "If directed to the trial of a cause where there is a master calendar, the motion shall be made to the trial judge supervising the master calendar not later than the time the cause is assigned for trial."

Appellant contends that it was impossible for him to challenge the assignment of the case to Judge Fagan, because neither he nor his attorney were present in the Master Calendar Department at the time the matter was assigned out for trial. The record supports this contention. Appellant further points out that there was pending and trailing in the Master Calendar Department another criminal action, charging defendant with the crime of rape. Prior to the date set for trial on the robbery matter, defense counsel (Deputy Public Defender Olson, who was representing defendant in both matters) had been answering ready for trial on the rape case for approximately two weeks. When he first appeared in Judge Fagan's courtroom for trial on June 16, he believed that he was expected to try the rape case. Therefore, he argues, he could not have returned to master calendar to challenge the trial judge for prejudice, because he was unaware of the right to challenge until he appeared in Judge Fagan's courtroom and realized that the scheduled trial was for the crime of robbery.

These facts compel the conclusion that appellant was not required to challenge the assignment of the case to Judge Fagan in the Master Calendar Department. Section 170.6 cannot be interpreted to require the filing of an affidavit of prejudice before the identity of the trial judge is known to the affiant. (See Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 694-695, 16 Cal.Rptr. 745.)

The question then presented is whether the affidavit of prejudice was untimely, not having been filed until after the conclusion of an in-chambers conference concerning plea bargaining. In 1965, Code of Civil Procedure section 170.6 was amended to add the following language: "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." (Emphasis added.)

In Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430, 48 Cal.Rptr. 832, the court made the following observation with respect to that amendment: "Here, it is crystal clear that the 1965 amendment changed the law and that a motion to disqualify a judge can now be made after any hearing or proceeding held prior to trial which does not involve a determination of a contested fact issue relating to the merits."

Since the 1965 amendment, a variety of pretrial motions have been found not to involve a determination of contested fact issues. ¹ Our attention has been directed to two Court of Appeal decisions addressing the issue of whether a pretrial conference on the issue of plea bargaining results in the determination of a contested fact issue, thereby prohibiting the subsequent filing of an affidavit of prejudice. In Fraijo v. Superior Court (1973) 34 Cal.App.3d 222, 225, 109 Cal.Rptr. 909, the court concluded: "A plea bargain is concerned only with the sentence to be imposed in exchange for defendant's plea of guilty which plea admits all of the facts necessary to establish guilt. Sentencing is addressed to the discretion of the trial judge and involves an evaluation of the circumstances surrounding the offense. Such an evaluation is not a determination of a factual issue on the merits as envisioned by section 170.6. A judge's evaluation of admitted facts, to determine whether to refuse or accept a proposed plea bargain, does not involve a fact finding function in respect of an issue to be tried."

In Lyons v. Superior Court (1977) 73 Cal.App.3d 625, 140 Cal.Rptr. 826, on the other hand, the court concluded that once a judge has engaged in plea bargain negotiations, it is too late to file a motion for disqualification. We note, however, that the Lyons court relied on the language in subdivision (1) of section 170.6, in concluding that a plea bargain "involves a contested issue of law or fact." (Lyons v. Superior Court, supra, 73 Cal.App.3d at p. 627, 140 Cal.Rptr. 826; emphasis added.) The court then discusses the numerous questions of law which may have to be determined by the court in deciding whether or not to accept a plea bargain. The pertinent language, however, is found in subdivision (2) of section 170.6, which relates only to a determination of a contested fact issue relating to the merits. We are...