People v. Najera

• Decision Date: 29 January 1979
• Docket Number: Cr. 32178
• Citation: 152 Cal.Rptr. 124,88 Cal.App.3d 930
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe NAJERA, Defendant and Appellant.

Page 124

152 Cal.Rptr. 124

88 Cal.App.3d 930

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe NAJERA, Defendant and Appellant.

Cr. 32178.

Court of Appeal, Second District, Division 5, California.

Jan. 29, 1979.

Corinne S. Shulman, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Juliet H. Swoboda, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

By jury trial appellant was found guilty of first degree burglary. He appeals from the judgment (order granting probation) contending (1) that the trial judge had no jurisdiction and (2) that error was committed by the court and the prosecutor as to rulings and comments upon locating defense witnesses. Neither contention has merit.

This trial was heard by Municipal Court Judge Michael B. Rutberg, sitting by assignment by the Chief Justice of California and Chairperson of the Judicial Council. The assignment was pursuant to an order dated August 30, 1977, by the Chief Justice and Chairperson of the Judicial Council as follows: "The Honorable Judges of the Alhambra, Antelope, Beverly Hills, Burbank, Citrus, Compton, Culver, Downey, East Los Angeles, Glendale, Inglewood, Long Beach, Los Angeles, Los Cerritos, Malibu, Newhall, Pasadena, Pomona, Rio Hondo, Santa Anita, Santa Monica, South Bay, Southeast and Whittier Municipal Court Districts are hereby assigned as judges of the Superior Court of Los Angeles County from September 1, 1977 to December 31, 1977, and until they have completed and disposed of all causes and matters heard by them."

Appellant contends the Chief Justice and Chairperson of the Judicial Council does not have authority to make a "blanket" assignment of all the judges of the municipal court, and may only assign individual judges by name. This contention lacks merit.

Article VI, section 6 of the California Constitution provides: "The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge's consent if the court is of lower jurisdiction." In addition, article VI, section 15, provides: "A judge eligible for municipal court service may be assigned by the Chief Justice to serve on any court."

The forerunner of article VI, section 6, was flexibly construed to effectuate its purposes to expedite judicial business and equalize the work of judges. (People v. Ferguson, 124 Cal.App. 221, 230-232, 12 P.2d 158 (it need not be shown that there was actual congestion of the court at the time of the trial); Gialdini v. Russell, 134 Cal.App. 524, 526-529, 25 P.2d 845 (it is unnecessary that the assignment specify a particular case in which the assigned judge is to act).)

We are not persuaded by appellant's argument that the blanket assignment unlawfully delegates power to the presiding judges of the superior and municipal courts. Flexibility in administration on a day-to-day basis is needed and permitted by the constitutional provision. (Gialdini v. Russell, supra; People v. Ferguson, supra.) The express language of the provision is not limited as urged by appellant but rather is broad: the Chief Justice "May provide for " the assignment of any judge to another court. (Emphasis added.)

Appellant next argues that the prosecutor committed error in commenting upon appellant's failure to call certain logical witnesses for the defense, a woman named Juanita, Juanita's boyfriend, and a man named Moochie. This argument is without merit. The prosecution evidence indicated that sometime after 7 p. m. on the night of October 29, 1976, appellant and a companion burglarized the apartment of appellant's sister, Matilda Dominguez, and removed a stereo and television. Appellant, having visited the apartment often, was familiar with its contents. Appellant was also aware that the victim was not at home that night, but was at her mother's. A next door neighbor, Tina Hernandez, who was acquainted with appellant, observed appellant come to the residence in a vehicle driven by his companion and knock on the doors. Later, when Tina was going to bed, she heard footsteps, a tearing noise, and the sound of appellant's voice. She then observed appellant and his companion carrying something, appellant walking backwards and the companion walking forward. The window on the victim's rear door was found broken and appellant's fingerprints were lifted from the broken window.

Appellant presented an alibi defense. He was at a party given by Christine Hernandez (no relation to eyewitness Tina Hernandez). Her boyfriend, Louis Andretti, was nicknamed ...