People v. Superior Court of L. A. Cnty.

• Decision Date: 17 September 2020
• Docket Number: B305626
• Citation: 54 Cal.App.5th 766,268 Cal.Rptr.3d 728
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Robert Brian Reagan, Real Party in Interest.

54 Cal.App.5th 766

268 Cal.Rptr.3d 728

The PEOPLE, Petitioner,

v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;Robert Brian Reagan, Real Party in Interest.

B305626

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

Filed September 17, 2020

Jackie Lacey, District Attorney, John Niedermann and Matthew Brown, Deputy District Attorneys, for Petitioner.

No appearance by Respondent.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Real Party in Interest.

BAKER, J.

We consider how the occasionally arcane timeliness rules for Code of Civil Procedure section 170.6 ( Section 170.6 ) judicial peremptory challenges should apply in case of a proceeding initiated by the filing of a habeas corpus petition in Los Angeles County Superior Court.

I

A jury convicted Real Party in Interest Robert Brian Reagan (Reagan) of second degree murder for stabbing his girlfriend to death while their son slept in the next room. In 2019, we affirmed the judgment on direct appeal.

After his conviction was final, on January 30, 2020, Reagan filed a voluminous habeas corpus petition in the superior court. The substance of the claims asserted in that petition are unimportant for our present purposes; the mechanics of the superior court's processing of his petition, and the People's response to the filing of the petition, are what matter.

The habeas petition was initially filed in Department 100 of the superior court. That was consistent with the superior court's local rules, which state a petition filed in a noncapital case after the defendant is held to answer must (for Central District cases) be filed with the Supervising Judge of the Criminal Division in Department 100. ( Super. Ct. L.A. County, Local Rules, rule 8.33(a)(1)(A).) The same local rule further provides the "supervising judge (sitting as a master calendar court) will promptly assign the petition to the department where sentence was imposed ...." (Ibid .)

Consistent with the local rule, Reagan's petition was sent from Department 100 to the Torrance Courthouse, and on February 20, 2020, the supervising judge in Torrance assigned the matter "for review and ruling" to Department G, the department in which Reagan's criminal trial had been held. Because the judge who presided over Reagan's trial was no longer assigned to that department, Judge Edmund Clarke was the recipient of the petition for ruling.

As his first order of business, Judge Clarke calendared the petition for a "status review" on a date in March 2020. Before the appointed status review date, however, Judge Clarke issued a March 10, 2020, in-chambers order (with no parties present) summarizing the gist of the habeas petition and ordering the Los Angeles County District Attorney (District Attorney) to file an informal response within 45 days—a sua sponte extension of the customary 15-day time to file such a response. Judge Clarke's order permitted Reagan to file a reply to the informal response and stated the matter would "stand submitted" if no reply were filed. The order included directions to the court clerk to serve the order on the District Attorney and counsel for Reagan.¹

On April 15, 2020, i.e., just over a month after Judge Clarke's order requesting an informal response, the District Attorney filed a Section 170.6 peremptory challenge against Judge Clarke. A memorandum of points and authorities accompanying the challenge argued it was timely filed because "there is a presumption that ... an all purpose assignment [of Judge Clarke] occurred by virtue of his issuance of the order for an informal response," "the all purpose assignment time limits in [S]ection 170.6, subdivision (a)(2), apply," and that subdivision's 10-day deadline had not even begun to run because the District Attorney " ‘ha[d] not yet appeared in th[is] action.’ "

The day after the Section 170.6 challenge was filed, Judge Clarke denied it as untimely. Judge Clarke noted his denial of the challenge as untimely "renders moot the problem that [the District Attorney's peremptory challenge] do[es] not show service on [Reagan's] counsel."

The District Attorney filed a petition for writ of mandate in this court challenging Judge Clarke's denial of its Section 170.6 motion. We issued an order to show cause and specifically invited counsel for the superior court to respond to the petition given the obvious implications for superior court operations and practice. Superior court counsel, however, declined our invitation, which left the District Attorney and Reagan as the only parties to file briefs in this proceeding.

II

We shall explain in more detail, but the bottom line is the trial court correctly ruled the District Attorney's Section 170.6 motion was untimely. Although the District Attorney tries to walk back her concession below that the assignment of the habeas petition to Judge Clarke was one for all purposes, precedent (including the same precedent the District Attorney cited below) holds that is indeed what the assignment should be considered. Applying Section 170.6 ’s all purpose assignment rule, the peremptory challenge to Judge Clarke had to be made "within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance." ( § 170.6, subd. (a)(2).) The District Attorney received notice of Judge Clarke's assignment well more than ten days before it filed its Section 170.6 motion, and in the peculiar context of a habeas corpus proceeding where the assigned judge gives notice of his or her assignment to the District Attorney by ordering an informal response, that notice provision controls and the later "10 days after the appearance" deadline in Section 170.6, subdivision (a)(2) is inoperative.²

" Section 170.6 provides that ‘[a] judge, court commissioner, or referee of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.’ ( § 170.6, subd. (a)(1).) Prejudice is established, for purposes of [S]ection 170.6, by a motion supported by an ‘affidavit or declaration under penalty of perjury, or an oral statement under oath’ that the assigned judge ‘is prejudiced against a party or attorney ... so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge ....’ ( § 170.6, subd. (a)(2).) So long as the ‘motion is duly presented, and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without any further act or proof,’ a different judge must be assigned to try the cause or hear the matter. ( § 170.6, subd. (a)(4).)" ( Maas v. Superior Court (2016) 1 Cal.5th 962, 972, 209 Cal.Rptr.3d 571, 383 P.3d 637 ( Maas ).)

" Section 170.6 does not mention habeas corpus proceedings or, for that matter, any writ or postconviction relief petitions." ( Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 990, 250 Cal.Rptr.3d 535 ( Bontilao ).) But our Supreme Court has held Section 170.6 motions may be successfully brought in habeas corpus proceedings where (as here) the assigned judge is not the judge who presided over the underlying criminal matter. ( Maas, supra , 1 Cal.5th at 975-976, 979, 209 Cal.Rptr.3d 571, 383 P.3d 637.) Though Section 170.6 motions are fair game in such circumstances, "the Legislature was well aware of the potential that [ Section 170.6 ’s] provisions ‘may be abused by parties seeking to delay trial or to obtain a favorable judge[,]’ " and the statute accordingly "restricts both the number and the timing of a peremptory challenge against a judge." ( Id. at 973, 209 Cal.Rptr.3d 571, 383 P.3d 637 ; see also id. at 983, fn. 3, 209 Cal.Rptr.3d 571, 383 P.3d 637 [explaining the court in Maas had no occasion to address questions regarding the timeliness rules that apply to a Section 170.6 motion in a habeas proceeding].)

Owing to the awkwardness in applying Section 170.6 rules to habeas proceedings that are not mentioned in the text of the statute (which instead uses terms like "hearing," "trial," and "cause" that are more geared to typical civil and criminal proceedings), determining the timeliness of a Section 170.6 challenge to a judge assigned to decide a habeas corpus petition is "difficult[ ]." ( Bontilao, supra , 37 Cal.App.5th at 990, 250 Cal.Rptr.3d 535.) Here is the statutory text that sets the pertinent rules: "If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee 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 shall be made at least 5 days before that date. If directed to the trial of a cause with 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. If directed to the trial of a criminal cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance. If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance." ( § 170.6, subd. (a)(2).)

That dense statutory text cries out for a simplified summary, and prior...