Sambrano v. Superior Court

• Citation: 31 Cal.App.3d 416,107 Cal.Rptr. 274
• Court: California Court of Appeals Court of Appeals
• Decision Date: 30 March 1973
• Parties: Jerry SAMBRANO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 41602.

Page 274

107 Cal.Rptr. 274

31 Cal.App.3d 416

Jerry SAMBRANO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

PEOPLE of the State of California, Real Party in Interest.

Civ. 41602.

Court of Appeal, Second District, Division 1, California.

March 30, 1973.

Barry Tarlow, Los Angeles, and Lorne B. Dubin, North Hollywood, for petitioner.

John D. Maharg, County Counsel, and Jeffrey H. Nelson, Deputy County Counsel, for respondent.

No appearance for real party in interest.

THOMPSON, Associate Justice.

This is a petition for a peremptory writ of mandate to require the trial court to grant petitioner's motion to disqualify a trial judge pursuant to Code of Civil Procedure section 170.6. We order that the writ be issued.

On July 5, 1972, the supervising judge of the Northeast District of the Los Angeles Superior Court issued two memoranda directing the manner of calendaring criminal matters in the district. One memorandum to the presiding judge of the municipal court states in pertinent part: 'Beginning July 10, 1972, all defendants bound over to Northeast District Superior Court will be assigned directly to their trial courts rather than to a Master Calendar Court. This assignment will be made by the Municipal Court Judge or Commissioner before whom the defendant has had a preliminary hearing or has made a certified plea of guilty. (Par.) The Municipal Court will receive the department and date of Superior Court arraignment by calling the Arraignment Clerk in the office of the Superior Court Criminal Courts Coordinator . . . however, the final responsibility, authority and supervision for the calendar management shall remain with the Supervising Judge, Northeast District. . . . (Par.) All motions of prejudice under C.C.P. 170.6 shall be made immediately in the Superior Court department to which the case is assigned at the time of arraignment.' The second memorandum directed to all judges hearing criminal cases in the northeast district of the superior court parallels the first, adding that all cases except complex matters involving trial estimates in excess of ten days will be assigned in 'strict rotation.'

On November 14, 1972, petitioner appeared at a preliminary hearing before a judge pro tempore of the municipal court sitting as a magistrate. Charged with violations of Health and Safety Code sections 11530 and 11531, he was committed for trial in the superior court. Pursuant to the memoranda of July 5, petitioner was ordered to appear for arraignment in department F of the northeast branch on November 28. Petitioner appered for arraignment as ordered and was arraigned with trial set for January 26, 1973. On January 18, petitioner filed a declaration to disqualify the judge sitting in department F, satisfying the requirements of Code of Civil Procedure section 170.6. The sitting judge, following the dictates of the memorandum of July 5, treated the declaration as untimely and disallowed it for that reason.

On January 24, petitioner filed his petition for alternative writ of mandate commencing the matter at bench. We issued our alternative writ and our order staying proceedings until we had acted on it. We conclude that petitioner's declaration, pursuant to Code of Civil Procedure section 170.6, was timely and accordingly issue a peremptory writ of mandate directing the trial court to honor the motion.

Code of Civil Procedure section 170.6 provides in pertinent part: 'Where the judge or court commissioner 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 five days before that date. If directed to the trial of a cause where there is 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. . . . In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be following as nearly as may be. . . .'

Speaking through Mr. Justice Sullivan, the Court of Appeal has capsulized the time of filing requirements of Code of Civil Procedure section 170.6 in Andrews v. Joint Clerks etc. Committee, 239 Cal.App.2d 285, 48 Cal.Rptr. 646. Andrews states: 'Excepting those situations involving the trial of a cause appearing on a master calendar, where the judge assigned or scheduled to try the cause or hear the matter is known at least ten days before the trial or hearing date, the motion must be made at least five days before that date. . . .' (239 Cal.App.2d at p. 294, 48 Cal.Rptr. at p. 651.)

Here the cause did not appear on a master calendar. The northeast branch of the Los Angeles superior court is the creature of Government Code section 69641 authorizing branch courts in Los Angeles county. 'Distribution of business' in that branch is...