People v. Superior Court of Orange Cnty.

• Decision Date: 25 July 2016
• Docket Number: G052932
• Citation: 205 Cal.Rptr.3d 200,1 Cal.App.5th 892
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Rito Tejeda, Real Party in Interest.

1 Cal.App.5th 892

205 Cal.Rptr.3d 200

The PEOPLE, Petitioner

v.The SUPERIOR COURT of Orange County, Respondent;

Rito Tejeda, Real Party in Interest.

G052932

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

Filed July 25, 2016

Tony Rackauckas, District Attorney, Stephan Sauer and Brian F. Fitzpatrick, Deputy District Attorneys, for Petitioner.

Schonbrun Seplow Harris & Hoffman and Paul L. Hoffman ; Erwin Chemerinsky, Venice, for Respondent.

Sharon Petrosino, Public Defender, and David Dworakowski, Assistant Public Defender, for Real Party in Interest.

OPINION

O'LEARY

, P.J.

Nearly 40 years ago, our Supreme Court reaffirmed “that Code of Civil Procedure section 170.6

, which provides for the disqualification of trial judges on motion supported by an affidavit of prejudice, does not violate the doctrine of the separation of powers or impair the independence of the judiciary.”¹ (Solberg v. Superior Court (1977) 19 Cal.3d 182, 186–187, 137 Cal.Rptr. 460, 561 P.2d 1148 (Solberg ).) It did so after considering “experience with the statute [in the preceding] decades and as applied ... in a criminal context.” (Id . at p. 187, 137 Cal.Rptr. 460, 561 P.2d 1148.) The Solberg court reasoned, “to the extent that abuses persist in the utilization of section 170.6 they do not, in our judgment, ‘substantially impair’ or ‘practically defeat’ the exercise of the constitutional jurisdiction of the trial courts. Rather, it may be helpful to view them as a relatively inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6. The statute thus remains a reasonable—and hence valid—accommodation of the competing interests of bench, bar, and public on the subject of judicial disqualification. We do not doubt that should future adjustments to this sensitive balance become necessary or desirable, the Legislature will act with due regard for the rights of all concerned.” (Solberg, supra, 19 Cal.3d at p. 204, 137 Cal.Rptr. 460, 561 P.2d 1148.)

Although we question the wisdom of the Solberg

holding in light of the complexities of modern court administration, we are bound to follow Supreme Court authority. For reasons we explain anon, we urge the Supreme Court to revisit the issue of blanket papering to determine whether the impact of an abusive use of Code of Civil Procedure section 170.6, such as demonstrated in this record, can be viewed as inconsequential on a trial court in the performance of its duty to administer justice.

No fundamental adjustments to this balance have been made by either the Legislature or the Supreme Court in the ensuing 39 years. Respondent Superior Court of Orange County (respondent court), however, refused to grant a section 170.6

motion filed on behalf of petitioner, the People of the State of California, because the Orange County District Attorney (district attorney) invoked an improper blanket challenge to a particular judge that substantially disrupted the respondent court's operations. As interpreted by respondent court, Solberg did not foreclose a separation of powers challenge to the executive branch's apparent abuse of section 170.6 under the circumstances of this case.

In our view, however, Solberg

anticipated circumstances very similar to those faced here. Rightly or wrongly, the Solberg court concluded the peremptory challenge at issue would not constitute a separation of powers violation. Because we are bound by the reasoning in Solberg,

we must grant the petition for writ of mandate.

PROCEDURAL HISTORY

In December 2014, real party in interest Rito Tejeda was charged with murder. (Pen. Code, § 187, subd. (a)

.) On December 3, 2015, respondent court assigned Tejeda's case to Judge Thomas Goethals for all purposes and set the matter for a pre-trial hearing in Judge Goethals' courtroom. That same day, petitioner moved to disqualify Judge Goethals pursuant to section 170.6. The motion was supported by a declaration executed under penalty of perjury by an attorney with the district attorney's office. The declaration represented that Judge Goethals “is prejudiced against the party or the party's attorney, or the interest of the party or party's attorney, such that the declarant cannot, or believes that he/she cannot, have a fair and impartial trial or hearing before the judicial officer.”

Later that day, respondent court denied the motion to disqualify Judge Goethals, “without prejudice to the People's or the defendant's right to seek reconsideration of this order, should they choose to do so.” Notice of entry of the order was served by mail.

On December 17, 2015, petitioner sought writ relief from this court. (§ 170.3, subd. (d).) This court issued an order to show cause on February 11, 2016, and subsequently set the matter for oral argument.

FACTUAL RECORD DEVELOPED BY RESPONDENT COURT

The factual record in this matter is unusual. Petitioner did not submit evidence (other than the standard form § 170.6

declaration) with its motion. Tejeda did not oppose the motion, with evidence or otherwise. Instead, respondent court took judicial notice of facts and events outside the scope of this particular case in supporting its conclusions (1) the district attorney's office was engaged in improper “ ‘blanket papering’ ” of Judge Goethals in murder cases, and (2) the effect of the blanket challenge was to “substantially disrupt[ ] the orderly administration of criminal justice in Orange County.” We summarize the lengthy recitation of facts from respondent court's order.

Judge Goethals practiced criminal law for more than 20 years, both as a member of the district attorney's office and as a private attorney representing criminal defendants. Since his appointment to the bench in 2003, Judge Goethals has presided over exclusively criminal matters, including “long cause cases” (the most complicated murder cases). “Judge Goethals has prosecuted capital cases, defended capital cases, and ... presided over capital cases....”

In January 2012, Judge Goethals was assigned the long cause case of People v. Dekraai , Superior Court Orange County (2012) No. 12ZF0128. In January 2013, Judge Goethals granted a defense discovery request pertaining to an inmate informant to whom defendant Dekraai had allegedly made incriminating statements. After receiving discovery materials, the defense filed three motions in January and February 2014 (to dismiss the death penalty allegations, to disqualify the district attorney's office based on an alleged conflict of interest, and to exclude from evidence any statements made by Dekraai to the informant). These motions were based on defense allegations that members of the district attorney's office and law enforcement officers had engaged in misconduct (perjury, subornation of perjury, intentional violation of criminal defendants' constitutional rights, and obstruction of justice) in connection with the use of informants. Judge Goethals refused the prosecution's request to deny the motions without an evidentiary hearing.

Judge Goethals began hearing evidence on all three motions on March 18, 2014. On August 4, 2014, Judge Goethals made factual findings that (1) law enforcement officers intentionally moved informants at the jail in an attempt to obtain incriminating statements, and (2) prosecutors had committed negligent violations of

Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

. Judge Goethals ruled that Dekraai's statements should be excluded from evidence, but denied the other two motions.² However, after new evidence was presented by the defense pertaining to the existence of a computerized system for handling informants, Judge Goethals granted the motion to disqualify the district attorney's office on March 12, 2015.

In the wake of these rulings, the district attorney's use of peremptory challenges against Judge Goethals changed dramatically. The raw numbers are stark. “For over three years, from December 7, 2010 through February 24, 2014, Judge Goethals was assigned 35 murder cases for trial and was disqualified once by the People. From February 25, 2014 through September, 2015, a period of [18] months, Judge Goethals was assigned 49 murder cases for trial and was disqualified 46 times by the People.” (Emphasis omitted.) The pattern continued with this case and others assigned to Judge Goethals in December 2015.

Respondent court's order then turned to the consequences of the district attorney's repeated disqualification of Judge Goethals. “Six months after the People began disqualifying Judge Goethals, the negative impact became readily apparent: the four other long cause judges had significantly more murder cases than Judge Goethals. This raised concerns because ... Penal Code section 1050

requires the judiciary to have courts available for trial at the earliest time possible. Furthermore, ... the purpose of having a long cause judge—one with a low-enough caseload to allow a seasoned judge to give sufficient time to a murder trial—was being defeated.”

Respondent court's multiple efforts to reassign murder cases to Judge Goethals were all rebuffed by section 170.6

challenges from the district attorney's office. “By April, 2015, [respondent court] was in a crisis. New murder cases were being added to its inventory, which included unresolved murder cases. In addition, a backlog of hundreds of other felony cases was becoming a significant problem. Short cause judges were unavailable to try the shorter felony cases because they were presiding over two-to-three-week murder trials. To solve this problem, long cause judges were assigned short cause cases, taking away the time necessary to be devoted to long cause murder cases.”

Assignments were shuffled between the various judicial officers at respondent court, in the hope that the blanket challenge phenomenon would be temporary. But it continued unabated through the autumn of 2015.

“[T]he effect of the People's ‘blanket’ disqualification of Judge Goethals has caused murder cases and other felony c...