People v. Superior Court (Williams)

• Decision Date: 31 July 1992
• Docket Number: No. C012131,C012131
• Citation: 10 Cal.Rptr.2d 873,8 Cal.App.4th 688
• Court: California Court of Appeals Court of Appeals
• Parties: , 61 USLW 2158 The PEOPLE, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent. Kenneth Derrell WILLIAMS, Real Party in Interest.

Page 873

10 Cal.Rptr.2d 873

8 Cal.App.4th 688, 61 USLW 2158

The PEOPLE, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent Kenneth Derrell WILLIAMS, Real Party in Interest.

No. C012131.

Court of Appeal, Third District, California.

July 31, 1992.

As Modified on Denial of Rehearing Aug. 28, 1992.

Review Denied Nov. 12, 1992.

Daniel E. Lungren, Atty. Gen., George Williamson and Robert R. Anderson, Acting Asst. Attys. Gen., Michael J. Weinberger and Thomas Y. Shigemoto, Deputy Attys. Gen., for petitioner.

Timothy E. Ainsworth, Supervising Research Atty., Superior Court of Sacramento, Sacramento, for respondent.

Michael K. Brady and Loretta H. Hellen, Sacramento, for real party in interest.

Jessie Morris, Jr. and Charles M. Bonneau, Sacramento, as amicus curiae on behalf of real party in interest.

PUGLIA, Presiding Justice.

The People seek a writ of prohibition restraining respondent Sacramento Superior Court from proceeding with trial of a criminal action before the Honorable James L. Long, and a writ of mandate directing respondent court to vacate its order disallowing a peremptory challenge to Judge Long and to issue an order allowing the challenge. We shall grant the People the relief they seek.

A Placer Superior Court jury convicted real party in interest (defendant) of murder (Pen.Code, § 187), rape (Pen.Code, § 261, subd. (3)), robbery (Pen.Code, § 211), kidnapping (Pen.Code, § 207), kidnapping for purposes of robbery (Pen.Code, § 209) and burglary (Pen.Code, § 459); the jury found as a special circumstance that defendant committed the murder in the course of other offenses (Pen.Code, § 190.2, subd. (a)(17)) and was armed with and personally used a firearm in the commission of some of the offenses (Pen.Code, §§ 12022, 12022.5). (People v. Williams (1989) 48 Cal.3d 1112, 1117, 259 Cal.Rptr. 473, 774 P.2d 146.) The jury fixed the penalty at death. (Id. at p. 1117, 259 Cal.Rptr. 473, 774 P.2d 146.) On automatic appeal (Pen.Code, § 1239, subd. (b)), the Supreme Court reversed the judgment on the ground "the trial court erred prejudicially in denying defendant's motion for change of venue." (Supra, 48 Cal.3d at pp. 1118, 1131-1132, 1139, 259 Cal.Rptr. 473, 774 P.2d 146.)

On remand, venue was changed to Sacramento County where the matter was set for retrial in respondent superior court. After jury selection commenced, a mistrial was declared after the trial court determined the prosecutor used peremptory challenges to remove prospective jurors solely on the basis of group bias. (Cf. Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) In due course, trial again commenced but a second mistrial was declared due to the inability of defendant's counsel to continue. New counsel was appointed to represent defendant, and the presiding judge, the Honorable James T. Ford, assigned the matter to Judge Long for jury trial.

On October 17, 1991, the People filed with Judge Ford a written motion and declaration to disqualify Judge Long peremptorily pursuant to Code of Civil Procedure section 170.6 [hereafter section 170.6]. Defendant objected, noting that Judge Long is a black male and asserting that the challenge was based on group bias and thus was not "legitimate." After being advised that a prior mistrial was predicated upon a finding that the prosecution exercised peremptory challenges to exclude black females from the jury, Judge Ford directed the prosecution to disclose its reasons for seeking peremptorily to disqualify Judge Long. The prosecution did so but Judge Ford concluded that the prosecution failed to state articulable facts overcoming a prima facie showing of invidious discrimination. Accordingly, Judge Ford found that the People's exercise of the section 170.6 challenge was not made in good faith and disallowed the peremptory challenge. Trial was set to commence before Judge Long on October 25, 1991.

On October 21, 1991, the People timely filed the instant petition seeking extraordinary relief, "the exclusive means of appellate review of an unsuccessful peremptory challenge motion." (People v. Hull (1991) 1 Cal.4th 266, 276, 2 Cal.Rptr.2d 526, 820 P.2d 1036; accord, People v. Broxson (1991) 228 Cal.App.3d 977, 979, 278 Cal.Rptr. 917; Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1163, 260 Cal.Rptr. 99.) On October 22, 1991, we stayed trial of the underlying proceeding pending receipt of opposition and further order of this court, and we advised the parties that we were considering issuing a peremptory writ in the first instance and that any opposition to the petition was to be filed on or before November 6, 1991. Respondent court and defendant timely filed opposition. With leave of court, an amicus curiae brief in support of defendant was filed on November 6, 1991. Pursuant to our direction, the People thereafter filed a supplemental brief addressing specified issues, and briefs of respondent superior court and defendant responding thereto were filed on May 4, 1992.

A brief statutory history will provide context and perspective. In 1937, the Legislature enacted the predecessor to section 170.6, former Code of Civil Procedure section 170.5, which provided for disqualification of a trial judge upon filing of a peremptory challenge in writing. (See Stats.1937, ch. 507, § 1, p. 1496; repealed by, Stats.1959, ch. 1099, § 1, p. 3172.) That statute was "promptly and unanimously ruled an unwarranted and unlawful interference with the constitutional powers and duties of the trial courts." (Autoland, Inc. v. Superior Court (1988) 205 Cal.App.3d 857, 861, 252 Cal.Rptr. 662, citing Austin v. Lambert (1938) 11 Cal.2d 73, 77 P.2d 849; see also Daigh v. Shaffer (1937) 23 Cal.App.2d 449, 73 P.2d 927.) In Austin, the Supreme Court distinguished peremptory challenge statutes operating in other jurisdictions on the ground "that without exception [those statutes] provide for some showing of disqualification by affidavit " and at least require "that the charge of bias or prejudice [be] under oath[,]" whereas former section 170.5 authorized disqualification with "[n]o more ... than the arbitrary and undisclosed reason and purpose of the litigant or his attorney." (Austin v. Lambert, supra, 11 Cal.2d at p. 76, 77 P.2d 849, emphasis original.)

Some 20 years later, "the Legislature resuscitated the peremptory challenge in its present form, adopting the requirement of a boilerplate affidavit...." (Autoland, Inc. v. Superior Court, supra, 205 Cal.App.3d at p. 861, 252 Cal.Rptr. 662.) Rejecting challenges to the new statute, the Supreme Court found section 170.6 constitutional, concluding "[t]he Legislature ... acted within its power to adopt reasonable regulations when it provided that, for the limited purposes of [the statute], prejudice may be established by the filing of an affidavit sworn to by a party or his attorney, without judicial determination of the existence of the fact." (Johnson v. Superior Court (1958) 50 Cal.2d 693, 697, 329 P.2d 5.)

As originally enacted in 1957, section 170.6 provided in pertinent part: "No judge of any superior ... court of the State of California shall try any civil action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge is prejudiced against any party or attorney or the interest of any party or attorney appearing in such action or proceeding. [p] Any party to or any attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit that the judge before whom such action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge.... [p] If such motion is duly presented and such affidavit is duly filed, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge to try the cause or hear the matter. In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge of the court in which the trial or matter is pending or, if there is no other judge of the court in which the trial or matter is pending, the chairman of the judicial council shall assign some other judge to try the cause or hear such matter as promptly as possible. Under no circumstances shall a party or attorney be permitted to make more than one such motion in any one action or special proceeding pursuant to this section...." (Stats.1957, ch. 1055, § 1, pp. 2288-2289.)

Only one of several amendments to the 1957 statute is relevant to the issues tendered by this proceeding: "As originally enacted ..., section 170.6 was limited to civil cases (Stats.1957, ch. 1055, p. 2288); in 1959 it was amended to apply to criminal cases as well (Stats.1959, ch. 640, p. 2620)." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 201, fn. 20, 137 Cal.Rptr. 460, 561 P.2d 1148; accord, McClenny v. Superior Court (1964) 60 Cal.2d 677, 685, 36 Cal.Rptr. 459, 388 P.2d 691 ["[S]ection 170.6 draws no distinction between civil and criminal actions. [Fn. omitted.]"]; People v. Cook (1989) 209 Cal.App.3d 404, 407, 257 Cal.Rptr. 226.) Hence, a prosecutor is now authorized to exercise peremptory challenges on behalf of the People. (See People v. Superior Court (Tony S.) (1975) 44 Cal.App.3d 904, 907-909, 119 Cal.Rptr. 125; People v. Gonzales (1965) 235 Cal.App.2d Supp. 887, 891, 46 Cal.Rptr. 301.) Subsequent to the 1959 amendment, the Supreme Court reiterated its determination that section 170.6 was constitutional, "remain[ing] a reasonable--and hence valid--accommodation of competing...