People v. Richard

• Decision Date: 04 October 1978
• Docket Number: Cr. 31642
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James P. RICHARD, Defendant and Appellant.

Page 344

149 Cal.Rptr. 344

85 Cal.App.3d 292

The PEOPLE, Plaintiff and Respondent, v. James P. RICHARD, Defendant and Appellant.

Cr. 31642.

Court of Appeal, Second District, Division 1, California.

Oct. 4, 1978.

Hearing Denied Nov. 30, 1978.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, and Edward H. Schulman, Deputy State Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Vincent J. O'Neill, Jr., Deputy Attys. Gen., for plaintiff and respondent.

THOMPSON, Associate Justice.

In this appeal from a judgment of conviction of first degree murder and of first degree burglary with the infliction of great bodily injury, we face the recurring problem of the timeliness of a motion to disqualify a trial judge filed pursuant to Code of Civil Procedure section 170.6. In particular, we consider the timeliness of a 170.6 motion not made until a defendant in a criminal case has forced a continuance by his intransigence in refusing to appear for trial and of a subsequent 170.6 motion made after a mistrial declared by reason of the failure of the jury to agree.

We conclude that the motions to disqualify the trial judge made in the case at bench were untimely. We also conclude that a contention of trial court error in failing to instruct Sua sponte is not supported by the record. Accordingly, we affirm the judgment.

170.6 Motion

Defendant, James P. Richard, was charged with first degree murder, with first degree burglary, and with having inflicted great bodily injury in the commission of the latter crime. Richard was arraigned on January 14, 1976, and entered his plea of not guilty. The public defender was appointed as his counsel. Trial was set for January 21 and then continued by stipulation to March 1, 1976. On Richard's successive motions, the case was continued to October 25, 1976, when it was again continued to November 29 because of "defendant's late disclosure to his counsel of possible defense witnesses." By stipulation, trial was continued to December 13 and again on defendant's motion to April 27, 1977. On that date, Richard's motion to relieve the public defender and to proceed in pro. per. was granted. The case was continued to May 2 due to a congested calendar. On May 2, the trial judge denied defendant's motions pursuant to Penal Code sections 995 and 1538.5 and continued the trial to the next day. On the morning of May 3, with jury selection scheduled to commence, Richard, now acting in pro. per., refused to leave the "lockup" for the courtroom. He stated that he was not prepared because he needed further research. The court continued the matter until the afternoon to let Richard decide whether he would come to court. The afternoon of May 3, Richard appeared and stated he was not ready for trial. Noting that Richard appeared to be engaged in a tactic of delay, the trial judge continued the trial to May 11. He admonished Richard that if Richard again refused to participate in his defense the court would revoke Richard's pro. per. privileges and appoint counsel to represent him. Richard moved to disqualify the trial judge for prejudice pursuant to subdivision 5 of Code of Civil Procedure section 170 and peremptorily pursuant to Code of Civil Procedure section 170.6. The 170.6 motion was denied as untimely and the motion to disqualify for cause was denied after hearing before another judge.

Trial commenced to a jury on May 12. On May 23, the jury reported itself deadlocked. A mistrial was declared and the matter continued to May 25, 1977, for trial setting and motions. On May 25, trial was set for June 27 in the department of the same judge who had presided at the first trial. On June 20, Richard again filed a motion to disqualify the trial judge pursuant to Code of Civil Procedure section 170.6. The motion was denied as untimely. The retrial resulted in Richard's conviction.

In this appeal, Richard contends that the trial court lacked jurisdiction to proceed because of his motions pursuant to Code of Civil Procedure section 170.6.

The first motion. Code of Civil Procedure section 170.6, which permits what is in effect a peremptory disqualification of a trial judge, provides in part that: "Where the judge . . . 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 (to disqualify) 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. . . ."

Here the matter was set for trial on May 3. The identity of the trial judge had been known to Richard long before 10 days prior to May 3. His first motion to disqualify the judge pursuant to Code of Civil Procedure section 170.6 was not made "at least five days" prior to the date for which trial was set.

Thus, unless the continuance of the matter from May 3 to May 11 commenced a new five day period for filing the motion, the trial court properly denied it as untimely.

On the record here, the continuance did not commence the period anew.

We note at the outset that, in language at least, the California cases are in disarray concerning the effect of a continuance upon the timeliness of a motion pursuant to Code of Civil Procedure section 170.6. Cases such as Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 695, 16 Cal.Rptr. 745; Woodman v. Selvage (1968) 263 Cal.App.2d 390, 394, 69 Cal.Rptr. 687; People v. Escobedo (1973) 35 Cal.App.3d 32, 39-40, 110 Cal.Rptr. 550, and Zdonek v. Superior Court (1974) 38 Cal.App.3d 849, 852, 113 Cal.Rptr. 669, seemingly declare that if the motion to disqualify is filed at least five days before the date to which a trial or hearing is continued it is timely. Cases such as Hospital Council of Northern Cal. v. Superior Court (1973) 30 Cal.App.3d 331, 338-340, 106 Cal.Rptr. 247, and People v. Kennedy (1967) 256 Cal.App.2d 755, 763, 64 Cal.Rptr. 345, seemingly declare that it is not. In re Jose S. (1978) 78 Cal.App.3d 619, 627, 144 Cal.Rptr. 309, seeks to resolve the dilemma by holding that a continuance to a particular department is not an assignment to a particular judge so that a motion made after the continuance when the judge to hear the matter first becomes known is timely. In People v. Wilks (1978) 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369, our Supreme Court gives a very broad meaning to the phrase "cause where there is a master calendar," and by so doing imposes a very strict test of timeliness of a 170.6 motion where there is a master calendar. Wilks Involves a situation in which one judge was designated both a master calendar and trial judge. The case had been assigned to him for trial and not for reassignment in his master calendar capacity. (Wilks, supra, at pp. 464-466, 114 Cal.Rptr. 364, 578 P.2d 1369.) The judge reassigned the case for trial to another judge and, as soon as the identity of the other judge became known, Wilks filed his 170.6 motion with the judge who was to try the case. Despite the fact that the reassignment was made by the first judge wearing his trial judge rather than master calendar judge hat, the Supreme Court held that the 170.6 motion was untimely because not made in the master calendar department.

While Wilks, by applying an ultra-strict test of timeliness in the master calendar situation, tends to validate the line of cases which applies a strict test of timeliness where a continuance is involved, we need not determine the case at bench on that premise.

The liberal rule of the one line of cases, which holds that the five-day period begins anew when a continuance of a trial date is granted, must be construed to be limited to those situations where the continuance is sought in good faith for good cause. A party who has allowed the time for a 170.6 motion to expire may not be permitted to extend it by his own bad faith conduct which prevents a trial from beginning on the date set for it. Here substantial evidence supports the trial court's determination that the last continuance was not sought in good faith but as a delaying tactic. Richard's intransigence in refusing to leave the lockup for the courtroom after he had been granted his Faretta right of self-representation (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562) supports the inference that Richard was deliberately playing off his pro. per. status against a bad faith claim that he was not ready for trial. The record supports the additional inference that the trial court granted the last continuance not because it concluded that good cause had been shown for it but rather to avoid Richard's future claim of error flowing from his gambit. Thus, the case at bench differs from the ordinary situation where the trial court's grant of a continuance itself establishes that the continuance was sought in good faith for good cause.

The second...