Reygoza v. Superior Court

• Decision Date: 23 May 1991
• Docket Number: No. B053812,B053812
• Court: California Court of Appeals Court of Appeals
• Parties: Adam REYGOZA, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

Page 390

281 Cal.Rptr. 390

230 Cal.App.3d 514

Adam REYGOZA, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent The PEOPLE, Real Party in Interest.

No. B053812.

Court of Appeal, Second District, Division 7, California.

May 23, 1991.

Review Denied Aug. 1, 1991.

Ronald A. Ziff and Abby Besser Klein, Los Angeles, for petitioner.

DeWitt W. Clinton, County Counsel and Frederick R. Bennett, Asst. County Counsel, for respondent.

No appearance for real party in interest.

FRED WOODS, Associate Justice.

Defendant filed a petition seeking a writ of mandate ordering the superior court to honor his motion pursuant to CODE OF CIVIL PROCEDURE SECTION 170.6¹ to disqualify the Honorable Beauford Phelps, Judge of the Superior Court. Defendant's motion was denied as being untimely pursuant to a policy ("Court Policy") enacted by the Criminal Departments of the Central District of the Superior Court of Los Angeles County ("Central District Criminal Departments"). The issue presented to us is whether the Court Policy, which provides that cases assigned to a department are assigned to the presiding judge of that department for all purposes, is a valid policy. We conclude that it is not and grant the writ petition.

FACTUAL AND PROCEDURAL SYNOPSIS

On September 12, 1990, an information was filed charging defendant with one count of a violation of Health and Safety Code section 11350 (possession of cocaine).

The information resulted from an order holding defendant to answer following a preliminary examination on August 28, 1990, in the Municipal Court for Los Angeles County, East Los Angeles Judicial District. At the conclusion of the hearing, the Honorable Carlos de la Fuente, Commissioner, ordered that defendant be arraigned on September 12, 1990, in Department 133 of the superior court.

On September 12, 1990, defendant was arraigned in Department 133 before the Honorable Beauford Phelps and entered a plea of not guilty. At that time, the matter was set for pretrial conference in Department 133 on October 10, 1990. No date for motion and/or trial was set prior to October 10, 1990.

On October 10, 1990, defendant filed a motion and declaration pursuant to section 170.6. The Honorable Beauford Phelps denied the peremptory challenge as being untimely pursuant to the Court Policy. ²

The Court Policy reads as follows:

"STATEMENT OF POLICY

"CENTRAL DISTRICT CRIMINAL DEPARTMENTS

"All criminal calendar Departments of the Central District of the Los Angeles Superior Court are designated as direct calendar courts. This designation applies to Departments 111 through Department 134, ... The designation applies to criminal courts located in the Criminal Courts Building, 210 W. Temple St., Los Angeles 90012.

"ANY CASE ASSIGNED TO A DIRECT CALENDAR COURT IS ASSIGNED TO THE JUDGE PRESIDING IN THAT COURT FOR ALL PURPOSES, INCLUDING TRIALS.

"The judges presiding in Departments 111 through Department 134 are as follows: ... D133-Beauford Phelps, ...

"In order to be timely, a challenge pursuant to C.C.P. Section 170.6(2) must be filed within ten (10) days of the defendant's first appearance in the direct calendar court."

DISCUSSION

I. Introduction

The time limits in which a peremptory challenge to a judge must be made are set forth in section 170.6, subdivision (2). ³

"Section 170.6 sets forth a procedure by which a party or attorney for a party may move to disqualify a judge. The motion must be supported by an affidavit to the effect that the judge is prejudiced against the party or his attorney so that the party cannot, or believes he cannot, obtain an impartial trial. If the motion is timely and in proper form, the judge must recuse himself and the case must be reassigned to another judge." (People v. Superior Court (Hall) (1986) 160 Cal.App.3d 1081, 1083, 207 Cal.Rptr. 131.)

In Hall, the court recognized that: "As a general rule, a motion pursuant to section 170.6 may be made at any time prior to commencement of the trial or hearing." (Ibid.) At the time that Hall was decided, there were two exceptions to this general rule--the "master calendar" exception and the "10-day 5-day" exception. (Ibid.) The 1989 amendment, which was effective as of January 1, 1990, added a third exception. (See Amendments, Deering's Ann.Code Civ.Proc., § 170.6 (1991 pocket supp.) p. 108.) This exception, which can be described as "for all purposes," provides that for cases assigned to a judge for all purposes, the motion must be made within 10 days after notice of the all purpose assignment or, if the party has not yet appeared, then within 10 days after the appearance.

II. Court Interpretation of Section 170.6

In People v. Superior Court (Hall), supra, 160 Cal.App.3d 1081, 207 Cal.Rptr. 131, the Second Appellate District concluded that assignment to a department, rather than to a particular judge, was not the equivalent of an assignment "for all purposes." The Hall court reasoned that: " 'There is an uncertainty necessarily inherent in the practice of assigning a cause to a particular department but not to a named judge. The all too common continuance adds unknown variables. A consequent and undue hardship on the litigant flows which negates the underlying thrust of ... section 170.6--to grant to the litigant a single reasonable opportunity to disqualify a known trial judge.' " (Original emphasis.) (Id., at p. 1085, 207 Cal.Rptr. 131.)

The court also noted that: " '[A] change of judge may occur in the designated department. No certainty arises a particular judge will hear the case from the fact of assignment, only, to a department. Vacation, illness and reassignment are common occurrences and upset best laid plans.' " (Ibid.) The court further observed that: "Courts have been reluctant to apply the ten-day five-day rule in this type of situation [where assignment was to a department] because of the uncertainty accompanying such an assignment; a litigant might exhaust his right to one peremptory challenge on a judge who may not ultimately preside at the hearing or trial." (Id., at p. 1084, 207 Cal.Rptr. 131.)

In Mackey v. Superior Court (1990) 221 Cal.App.3d 1124, 1126, 270 Cal.Rptr. 905, the court noted that the judges of the east branch of the superior court had taken the position that the 1989 amendment was applicable to criminal cases assigned from municipal court to a particular superior court department under a "direct calendaring" system. Mackey was decided by Division Five of the Second Appellate District, the division which decided Hall. The Mackey court held that the 1989 amendment to section 170.6 did not affect Hall's holding that matters assigned to a particular department rather than to a particular judge were subject to the "10-day/5-day" rule. (Id., 221 Cal.App.3d at p. 1127, 270 Cal.Rptr. 905.)

In August 1990, the Central District Criminal Departments published ⁴ in the Daily Journal the Court Policy set out in the factual synopsis. The essential provision of the Court Policy is that: "Any case assigned to a direct calendar court is assigned to the judge presiding in that court for all purposes, including trials." The policy includes a list of the departments and their presiding judges. In essence, the policy incorporates part of the "for all purposes" exception of section 170.6 by stating that a section 170.6 challenge must be filed within 10 days of the defendant's first appearance in the direct calendar court.

The issue we are called upon to decide is whether the Court Policy overrides Mackey, thus converting an assignment to a department in the Central District criminal departments to an assignment "for all purposes" for the filing of a section 170.6 motion.

III. The Instant Case

On August 28, 1990, the municipal court ordered that petitioner be arraigned on September 12, 1990, in Department 133 of the superior court. Petitioner was arraigned on September 12, 1990, in Department 133, before the Honorable Beauford Phelps. At that time, the matter was set for pretrial conference in Department 133 on October 10, 1990. No date for motion and/or trial was set prior to October 10, 1990. On October 10, 1990, petitioner's section 170.6 motion was denied as being untimely pursuant to the Court Policy.

In the instant case, as in Hall, the master calendar exception is inapplicable as the Central District is on a direct calendaring system. Petitioner contends that since his case was assigned to Department 133, it was not assigned to a judge for all purposes, and therefore his filing of the peremptory challenge was timely under the "10-day/5-day" rule of section 170.6 since he filed the peremptory challenge before any date for motions or trial had been set. The "10-day/5-day" rule or exception applies where the judge is known ⁵ at least 10 days before the date set for trial or hearing and requires that the motion be made at least five days before that date.

At first glance, it would appear that under the "10-day/5-day" rule, petitioner's motion was untimely not having been filed 5 days before the pretrial conference hearing. However, section 170.6, subdivision (2) also provides that: "... The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion...." Since petitioner could have made a peremptory challenge after the pretrial conference and since no trial and/or contested fact motion date had been set, we conclude that petitioner's motion was timely.

IV. The Court Policy

Local rules are expressly authorized by Government Code section 68070, which, in relevant part, provides that: "Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Emphasis...