People v. Rojas

• Citation: 216 Cal.App.2d 819,31 Cal.Rptr. 417
• Decision Date: 04 June 1963
• Docket Number: Cr. 8662
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander Aragon ROJAS and Joe Hidalgo, Defendants and Appellants.

Page 417

31 Cal.Rptr. 417

216 Cal.App.2d 819

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander Aragon ROJAS and Joe Hidalgo, Defendants and Appellants.

Cr. 8662.

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

June 4, 1963.

Hearing Denied July 31, 1963

Alexander L. Oster, Laguna Beach, for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

In 1959, the court found Rojas and Hidalgo guilty of receiving stolen property (§ 496, Pen.Code). Hidalgo, who operated an electrical contracting business, purchased certain electrical equipment knowing it to be stolen; Rojas was arrested unloading it from the truck. The original probation reports reveal that Rojas 'was somewhat a victim of circumstances,' but that Hidalgo, who was under suspicion by police for a long time, engaged in past illegal activities and had several prior misdemeanor convictions. Rojas was granted probation for five years on the condition he spend the first 180 days in the county jail; Hidalgo was denied probation and sentenced to the state prison.

Both defendants appealed. The Supreme Court reduced the offense from receiving stolen property to attempting to receive stolen property, reversed the judgment and order, and remanded the cause for further proceedings with 'directions to enter such lawful judgment or order against each defendant, based on the modified finding, as the court deems appropriate.' (People v. Rojas, 55 Cal.2d 252, 261, 10 Cal.Rptr. 465, 470, 358 P.2d 921, 926, 85 A.L.R.2d 252.)

On remittitur, the cause again came before the same judge who, after considering lengthy defense argument, refusing to refer the matter to the probation officer, and failing to deny Hidalgo probation, again sentenced him to the state prison, and placed Rojas on five years probation on the condition he spend the first 180 days in the county jail.

Defendants appealed a second time. On May 15, 1962, the Supreme Court found the trial court erred in not again referring the matter to the probation officer and in failing to deny Hidalgo probation, vacated the judgment and order, and remanded the cause 'with directions to the court below to refer the matter to the probation officer; thereafter to consider the latter's report and to thereupon pronounce such lawful judgment or order against each defendant as the court may determine.' (People v. Rojas, 57 Cal.2d 676, 683, 21 Cal.Rptr. 564, 568, 371 P.2d 300, 304.)

Upon the filing of the remittitur, and before the third hearing on probation and sentence, defendants on June 18, 1962, moved to disqualify the trial judge from again hearing the matter (§ 170.6, Code Civ.Proc.). On June 28, 1962, the affidavits of prejudice were stricken, the appeal bonds were exonerated, bail pending hearing on probation and sentence was fixed at $10,000 for each defendant, and supplemental probation reports were ordered. On July 16, 1962, defendants filed new affidavits of disqualification under section 170, Code of Civil Procedure, charging prejudice due to the following 'actions' of the trial judge: on Hidalgo's second appearance before him he 'refused to refer the cause to the probation department for a current investigation and report on request of defendant's counsel and the deputy district attorney, and sentenced affiant (Hidalgo) to the state prison without denying probation'; on their third appearance he exonerated defendants' $2,500 and $5,000 bonds on appeal and set bail for each pending hearing on probation and sentence in the sum of $10,000; and on Rojas' second appearance, after the Supreme Court reduced the charge, he 'imposed the identical terms of probation for the lesser offense as originally imposed for the completed offense.' These affidavits were also stricken.

The supplemental probation reports were then considered by the judge. The report for Hidalgo stated that 'Police Authorities were reasonably certain that the defendant has continued his activities regarding receiving stolen property primarily involving electrical equipment and appliances' (p. 3), and that he 'has carried on extensive illegal business pursuits which regard receiving stolen property and they further feel that he is an influential and key figure in certain activities including the receiving of huge quantities of merchandise which accrues from burglaries. These activities have been in operation on a large scale in this community.' (p. 6.) Attached thereto were police reports showing Hidalgo's continued unlawful conduct subsequent to his conviction. The probation report for Rojas revealed that 'Hidalgo was engaged in the continued receiving of stolen goods in huge quantities after his conviction under the present charge' and Rojas was 'just a flunky for Joe Hidalgo' (p. 2); but the police report attached to Hidalgo's probation report implicated him in Hidalgo's subsequent activities indicating that Rojas, too, since his conviction has continued illegal transactions. The lower court again suspended the proceedings and placed Rojas on probation for 5 years but on the condition that he spend the first year in the county jail; Hidalgo was denied probation and sentenced to the state prison.

Defendants prosecute this third appeal from the order and judgment. They contend that the trial judge erred in striking the affidavits for disqualification, abused his discretion in confining Rojas to the county jail for one year as a condition of probation, and erred in sentencing Hidalgo to the state prison.

Considering first the affidavits under section 170.6, Code of Civil Procedure, they were properly stricken, for the motion to disqualify was not timely made. (Pappa v. Superior Court, 54 Cal.2d 350, 5 Cal.Rptr. 703, 353 P.2d 311; Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9.) The cause was transfereed to the trial judge on May 6, 1959; he heard the matter and found defendants guilty in October 1959; thereafter each time the Supreme Court vacated the judgment and order, the cause was returned to and heard by him. Over three years after the transfer, defendants first moved to disqualify the judge. The rule under section 170.6, requires the making of the motion before the trial commences. (People v. Paramount Citrus Association, 177 Cal.App.2d 505, 2 Cal.Rptr. 216; People v. Roerman, 189 Cal.App.2d 150, 10 Cal.Rptr. 870; Stafford v. Russell, 201 Cal.App.2d 719, 20 Cal.Rptr. 112; Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9.) Referring to section 170.6, the Supreme Court stated in Jacobs v. Superior Court, 53 Cal.2d 187, at pages 190, 191, 1 Cal.Rptr. 9, at page 11, 347 P.2d 9, at page 11: 'It is provided that in no event shall a judge entertain a motion under this section if it is made after swearing in the first witness or the giving of any evidence or after the trial of the cause has otherwise commenced.

'The question here is whether the motion was timely. Although the statute does not expressly so provide, it follows that, since a motion must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.' Hearing on probation and sentence, while subsequent in point of time to the trial of the cause, is a part and a continuation of the original criminal action, and 'not a separate proceeding or hearing in the meaning of section 170.6, Code of Civil Procedure.' (People v. Smith, 196 Cal.App.2d 854, 856, 17 Cal.Rptr. 330, 332; Pappa v. Superior Court, 54 Cal.2d 350, 5 Cal.Rptr, 703, 353 P.2d 311; see also § 683, Penal Code, § 22, Code Civ. Proc.) Nor did the interruption of the two appeals operate to constitute the hearing a proceeding separate and apart from the original criminal action. The 'further proceedings' in the lower court, twice ordered by the Supreme Court mandate, amounted to nothing more than a resumption and continuation of the original criminal cause, for the directions required the lower court to pronounce judgment or order based upon the findings supplemented by any additional facts the probation investigation might reveal. (People v. Paramount Citrus Association, 177 Cal.App.2d 505, 2 Cal.Rptr. 216.) Moreover, while one who has not previously moved under section 170.6, may do so in a proceeding supplemental to the original action if his motion is timely made, he can exercise his privilege only 'as to a judge other than any judge who has previously heard any phase of the matter.' (Emphasis added.) (People v. Smith, 196 Cal.App.2d 854, 859, 17 Cal.Rptr. 330, 334; Thompson v. Superior Court, 206 A.C.A. 796, 23 Cal.Rptr. 841.) There is no right in a continuation of a prior proceeding to disqualify the judge who heard the original criminal cause. 'Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues.' (Jacobs v. Superior Court, 53 Cal.2d 187, 191, 1 Cal.Rptr. 9, 11, 347 P.2d 9, 11.)

The affidavits filed under section 170 were also properly stricken. While no judge who denies his disqualification may hear or pass upon the question and it shall be heard and passed on by some other judge (§ 170, Code Civ.Proc.), where the affidavit filed in support of the motion to disqualify does not contain facts whereby the movant would prove the judge prejudiced, he may ignore the same or strike it from the record as insufficient, and proceed with the hearing. (Keating v. Superior Court, 45 Cal.2d 440, 289 P.2d 209; Elliott v. Superior Court, 180 Cal.App.2d 894, 5 Cal.Rptr. 116; People v. Darby, 114 Cal.App.2d 412, 250 P.2d 743.) In People v. Darby, 114...