People v. Superior Court (Tony S.

• Decision Date: 28 January 1975
• Citation: 119 Cal.Rptr. 125,44 Cal.App.3d 904
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; TONY S. et al., Real Parties in Interest. Civ. 45143.

Page 125

119 Cal.Rptr. 125

44 Cal.App.3d 904

The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent TONY S. et al., Real Parties in Interest.

Civ. 45143.

Court of Appeal, Second District, Division 3, California.

Jan. 28, 1975.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head App. Div., Jay J. Becker, Deputy Dist. Atty., for petitioner.

John H. Larson, County Counsel, John P. Farrell, Deputy County Counsel, Los Angeles, for respondent.

Richard S. Buckley, Public Defender, John J. Gibbons, Jo Kaplan, Laurence M. Sarnoff, Deputy Public Defenders, as amicus curiae.

ALLPORT, Associate Justice.

On November 25, 1974, this court issued an alternative writ of mandate requiring the respondent court to vacate an order denying motions to disqualify a judge (commissioner) pursuant to Code of Civil Procedure section 170.6 and to make a new and different order granting said motions, or to show cause before this court on January 23, 1975, why a peremptory writ orcering that such be done should not issue. Respondent having refused to comply with the alternative writ, the cause was on said date argued and submitted for decision.

Statement of the Case ¹

The record before us discloses that on October 10, 1974, three minors appeared in juvenile court on petitions filed by the Los Angeles County Probation Officer seeking to have each declared a ward of the court pursuant to Welfare and Institutions Code section 602 et seq. The minors were represented by counsel. The allegations of the petition were denied and adjudication hearings set for October 25, 1974, before a court commissioner by orders made on October 10 and 23, 1974. On October 10, 1974, representatives of the office of the district attorney made motions supported by affidavits of prejudice filed in each case under Code of Civil Procedure section 170.6 ² against the particular commissioner before whom the proceedings were to be heard. On October 23, 1974, the motions were denied by respondent court and the adjudication hearings ordered to be held as scheduled on the 25th. On October 24, at request of the district attorney, we ordered all further proceedings in these matters stayed pending determination of this petition or until further order of this court.

In denying the motions supported by the affidavits of prejudice respondent court took the position that the district attorney appeared in these proceedings at the invitation of the court for the purpose of assisting in the orderly presentation of the evidence only and was not party or an attorney appearing in the proceeding, as specified in the judge challenge law.

Contentions

The district attorney now argues that by denying the motions the court acted illegally and beyond its jurisdiction in that the district attorney is an attorney appearing in the proceedings and does in fact represent a party, to wit, the People of the State of California. To the contrary respondent court contends that the People are not a party to the proceeding and that the district attorney in his capacity as such does not have the legal standing to disqualify a judge or commissioner in a juvenile court matter. It is argued that at most any participation even under Welfare and Institutions Code section 681 is as a friend of the court only and not as an attorney for a party. For reasons to be stated we do not agree with the position taken by respondent.

Discussion

It appears clear as suggested by respondent court that the 'immediate commonsense interpretation' of section 170.6 is that only a party or an attorney appearing for a party is authorized to exercise the challenge. The form of affidavit provided for in the statute itself would logically lead to such a conclusion. ³ The affidavits filed in the instant proceedings allege in substance that the affiant is an attorney appearing in the action and that the People are a party to the proceedings against whose interests the commissioner is prejudiced.

Clearly the district attorney is not a party to the proceedings nor does hs mere appearance give him status to exercise the challenge. Thus the issue before us is whether the district attorney is, in the matters before us, an attorney for a party within the purview of the judicial challenge law. Section 170.6 authorizes the exercise of the challenge in a civil or criminal action or in a 'proceedings.' While these are not criminal actions nor criminal proceedings (Welf. & Inst.Code, § 503), they are proceedings. The Welfare and Institutions Code describes the effort to establish wardship a 'A proceeding in the juvenile court . . .' commenced by the filing of a petition by the probation officer. (Welf. & Inst.Code, § 650.) It is conceded by respondent that the probation officer could have filed a motion to disqualify a judge under section 170.6. We are satisfied that the proper functioning of the juvenile justice system compels that the interests of society in general as well as of the juvenile in particular be protected. The trend of judicial decisions in the recent past indicates a desire on the part of the judiciary to extend to those subject to the juvenile court law the same procedural, substantive and constitutional safeguards and protection as are afforded adults under the portion of the justice system applicable to them. (See e.g., In re B., 20 Cal.App.3d 816, 98 Cal.Rptr. 178; In re S., 15 Cal.App.3d 283, 93 Cal.Rptr. 112; In re M., 11 Cal.App.3d 741, 96 Cal.Rptr. 887.) By the same token it appears equally desirable that society itself should be also afforded the same safeguards and protection when its interests are affected by the actions of criminally inclined juveniles. (Cf. R. v. Superior Court, 19 Cal.App.3d 895, 97 Cal.Rptr. 158.) Thus a strong argument can be made that, even though the probation officer is the one designated to bring the proceedings, he is but a representative of endangered segments of society and that the People are the real party in interest in these proceedings.

We do not find it necessary however in the instant matters to decide that the People are in fact party to all juvenile court proceedings in order to be extended this protection. We conclude, for reasons to be stated, that in the instant proceedings the district attorney is appearing for a party and has the status to exercise the challenge. Welfare and Institutions Code section 681 provides that 'In a juvenile court hearing, where the minor who is the...