People v. Smith

• Decision Date: 14 November 1961
• Docket Number: Cr. 7664
• Citation: 196 Cal.App.2d 854,17 Cal.Rptr. 330
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Harold George SMITH, Defendant and Appellant.

Page 330

17 Cal.Rptr. 330

196 Cal.App.2d 854

PEOPLE of the State of California, Plaintiff and Respondent, v. Harold George SMITH, Defendant and Appellant.

Cr. 7664.

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

Nov. 14, 1961.

As Modified on Denial of Rehearing Dec. 1, 1961.

Hearing Denied Jan. 9, 1962.

Ellery E. Cuff, Public Defender, Richard S. Buckley and James L. McCormick, Deputy Public Defenders, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for respondent.

BURKE, Presiding Justice.

May a defendant file an affidavit under section 170.6 of the Code of Civil Procedure to disqualify a judge from hearing a purported violation of probation where the judge has had no previous connection with the case? This is the basic issue presented in this appeal.

On August 27, 1959, defendant was convicted of a violation of section 480 of the Vehicle Code [now Vehicle Code 1959, § 20001], a felony. Judge Bayard Rhone, who tried the case, granted defendant probation for a term of three years with one of the conditions being that he spend ninety days in the county jail.

Defendant was subsequently convicted of battery in the municipal court and thereupon was returned to the superior court for possible modification of probation. A hearing on the report of the probation officer was held on November 21, 1960, before Judge Gregory P. Maushart. Probation was modified to the extent that defendant was ordered to submit to treatment by the Veterans Administration and not to annoy or molest his wife--all other conditions of probation to remain the same.

On February 28, 1961, the probation officer filed a further report recommending modification of probation, alleging that defendant had been arrested for being drunk. Imposition of sentence on this charge was suspended by the Los Angeles Municipal Court on November 30, 1960, and one-year summary probation was ordered.

The modification of probation by the superior court came on for hearing before Judge Joseph L. Call on March 1, 1961. Defendant was present but not represented by counsel. Judge Call revoked probation and sentenced defendant to state prison for the term prescribed by law on the violation of section 480 of the Vehicle Code.

On March 3, 1961, on the court's own motion, Judge Call returned defendant to the court, declared the sentence theretofore imposed on March 1, 1961, to be void and set it aside. The court appointed the public defender to represent defendant and on motion or defendant's attorney the matter was continued to March 6, 1961.

On March 6, 1961, defendant filed an affidavit pursuant to section 170.6 of the Code of Civil Procedure alleging Judge Call to be prejudiced against him. The affidavit was ordered stricken by the judge who took the position that such an affidavit could not be filed after the trial on the original charge had been commenced; that the same reasoning would apply on a hearing on modification or revocation of probation as would pertain to a motion for new trial; that the modification or revocation of probation proceedings were all continuations of the original trial and not a separate proceeding or hearing in the meaning of section 170.6, Code of Civil Procedure.

Had the hearing on the modification or revocation been before the judge who had tried the case, then undoubtedly the reasoning of Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 11, 347 P.2d 9, 11 and MCCAULEY V. SUPERIOR COURT, 190 CAL.APP.2D 562, 12 CAL.RPTR. 119¹, would be applicable. It, after determination of a case by a judge, his disqualification for prejudice 'were permitted under section 170.6 in matters which are continuations of a prior proceeding, it would mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, and without any judicial determination of the facts, be disqualified from hearing such matters as motions for modification of a support order or an injunction, as well as motions for change of custody of children. 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, supra, 53 Cal.2d at p. 191, 1 Cal.Rptr. at p. 11, 347 P.2d at p. 11.)

In the case before us, however, Judge Call was not the judge who tried the case originally or who heard the first modification of probation. Counsel asked for time, which was granted, to file an affidavit under section 170.6 Code of Civil Procedure. This was done the very first time he appeared with defendant before Judge Call. . Defendant had not previously exercised his right to file an affidavit under this section. To deny him this right would be contrary to the intent and purpose of the section.

At the hearing on March 6, 1961, defendant's counsel also made a motion to have the matter transferred to Judge Bayard Rhone's department for hearing. Judge Call properly denied this motion since that judge was no longer sitting in a department trying criminal cases. This was in compliance with section 2 of rule 30 of the Superior Court in and for the County of Los Angeles which provides, with respect to the hearing of subsequent modifications of an original grant of probation:

'Whenever such judge is not sitting in the criminal division or is otherwise unavailable to hear or consider any such application or request or motion, it shall be heard and determined by the judge presiding over the Master Calendar Department of the Criminal Division or by any other judge whom he shall designate.' (Emphasis added.)

On March 6, 1961, defendant's counsel also made a motion for a new trial before Judge Call, after the latter had denied his motion to transfer the matter to Judge Rhone for hearing. Judge Call denied the motion. Since the motion was made approximately seventeen months after the original order granting probation, it was clearly untimely.

'The application for a new trial must be made before judgment or within 20 days after the making of an order granting probation, whichever first occurs, * * *' (Penal Code, § 1182.)

Defendant's patently untimely motion for new trial is nugatory. (In re Watkins, 120 Cal.App.2d 586, 587-588, 261 P.2d 786; People v. Watkins, 92 Cal.App.2d 375, 377, 206 P.2d 1118.)

In a petition for rehearing respondents cite the case of Pappa v. Superior Court, 54 Cal.2d 350, 5 Cal.Rptr. 703, 353 P.2d 311, in support of their contention that the motion of the defendant under 170.6 was not timely because a hearing...