State v. Espinoza

• Decision Date: 22 June 1989
• Docket Number: No. 55370-0,55370-0
• Citation: 112 Wn.2d 819,774 P.2d 1177
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. James C. ESPINOZA, Respondent.

Page 819

112 Wn.2d 819

774 P.2d 1177

STATE of Washington, Petitioner, v. James C. ESPINOZA, Respondent.

No. 55370-0.

Supreme Court of Washington En Banc.

June 22, 1989.

Jeffrey C. Sullivan, Yakima County Prosecutor, Steve Keller, Deputy, Yakima, for petitioner.

Michael W. Lynch, Yakima, for respondent.

SMITH, Justice.

The State of Washington sought review of a decision of the Court of Appeals, Division III, reversing and remanding Respondent James C. Espinoza's juvenile convictions for first degree arson and for possessing, manufacturing or disposing of an incendiary device. The Court of Appeals held there was sufficient evidence to sustain the conviction for manufacturing an incendiary device, but reversed and remanded because the superior court commissioner who convicted Mr. Espinoza declined to recuse himself after Mr. Espinoza filed an affidavit of prejudice against him. ¹ We reverse the Court of Appeals on its reversal and remand and we uphold both convictions in this case.

Two issues are presented by this case. They are:

(1) Whether an affidavit of prejudice pursuant to RCW 4.12.050 can be used to peremptorily disqualify a superior court commissioner from hearing a criminal case in the juvenile court; and

(2) Whether, under the facts of this case, the State established a prima facie case against the defendant (Respondent James C. Espinoza) for manufacturing or possessing an incendiary device, with specific reference to the ability of the device to provide initial ignition for an ensuing fire.

The State contends that RCW 4.12.050, which gives a petitioner the right to file an affidavit of prejudice and peremptorily disqualify a superior court judge from hearing a matter, does not apply to court commissioners.

Respondent Espinoza challenges only the finding of the Court of Appeals that there was sufficient evidence to establish a prima facie case on the charge of manufacturing or possessing an incendiary device.

On May 1, 1986, James C. Espinoza, age 14, and two companions manufactured what they called "fire bombs" from jars, paper towels, lantern oil, lighter fluid and matches. On May 2, 1986, a residence at 701 South Seventh Avenue, Yakima, was substantially burned by an intentionally set fire. Mr. Espinoza was acquainted with the occupant of the residence and had threatened to burn it because of the occupant's interference with Mr. Espinoza's girlfriend. State v. Espinoza, 51 Wash.App. 719, 720, 754 P.2d 1287, review granted, 111 Wash.2d 1011 (1988).

Investigators determined the fire was caused by a flammable liquid. Witnesses stated Mr. Espinoza had boasted to his friends about setting the fire. When questioned by authorities, he was equivocal in describing his responsibility for it.

Respondent Espinoza was later arrested and subsequently arraigned on May 15, 1986, on one count of possession, manufacturing or disposing of an incendiary device, in violation of RCW 9.40.120 and one count of first degree arson, in violation of RCW 9A.48.020.

On May 20, 1986, Respondent Espinoza entered a plea of "not guilty." The case was set for trial. As the trial date approached, respondent moved for a continuance. This motion was heard and granted by Yakima County Court Commissioner Stephen M. Brown on June 3, 1986.

As the second trial date of July 3, 1986, approached, another continuance was requested by respondent and joined by the State. This motion was heard by Commissioner Brown on July 2, 1986. He granted a trial date of July 24, 1986.

On July 23, 1986, preliminary motions were filed by Respondent Espinoza.

On July 24, 1986, the designated trial date, an associate of defense counsel filed an affidavit of prejudice on behalf of Respondent Espinoza against Commissioner Brown, requesting the commissioner to honor the affidavit and recuse himself. Commissioner Brown declined. Citing RCW 13.04.021, he held that a commissioner is authorized to hear all juvenile cases, subject only to a motion for revision as provided in RCW 2.24.050.

The trial proceeded. Respondent Espinoza was found "guilty" of both charges. He was sentenced to 103-129 weeks on the first degree arson charge and to 30 days on the incendiary device charge.

Respondent Espinoza filed a motion for revision of the commissioner's findings pursuant to RCW 2.24.050. The Honorable Howard Hettinger, Judge of the Superior Court, ruled that an affidavit of prejudice does not lie against a court commissioner and that Respondent Espinoza was proven guilty of both charges beyond a reasonable doubt under the evidence presented.

In a partially published split decision, the Court of Appeals, Division Three, reversed and remanded for new trial, holding that juvenile court commissioners are subject to removal by affidavit of prejudice under RCW 4.12.050. The Court of Appeals further concluded that "viewing the evidence in favor of the State, there is a sufficient quantum thereof to establish, prima facie, the corpus delicti of the crime." ²

RCW 4.12.040 provides that "[n]o judge of a superior court" shall hear or try an action when it is established that the judge is prejudiced against any party or attorney or the interest of any party or attorney appearing in the matter. Any party or attorney may establish such prejudice "by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge." RCW 4.12.050.

When an affidavit of prejudice is timely filed against a juvenile court judge, the moving party is entitled to a change of judge as a matter of right. In re McDaniel, 64 Wash.2d 273, 275, 391 P.2d 191 (1964). See also LaMon v. Butler, 112 Wash.2d 193, 201, 770 P.2d 1027 (1989). An affidavit of prejudice is not timely under RCW 4.12.050 unless it has been filed before a judge has been called upon to make a ruling involving discretionary powers of the judge. State v. Dixon, 74 Wash.2d 700, 702-03, 446 P.2d 329 (1968). Granting or denying a continuance is a discretionary ruling. State v. Guajardo, 50 Wash.App. 16, 19, 746 P.2d 1231 (1987), review denied, 110 Wash.2d 1018 (1988).

In this case, the State collaterally challenges the timeliness of Respondent Espinoza's affidavit of prejudice against Juvenile Court Commissioner Stephen M. Brown. Commissioner Brown twice exercised his judicial discretion in ruling on motions for continuances on June 3, 1986, and July 2, 1986. These rulings were made before the affidavit of prejudice was filed on July 24, 1986, the date of trial. However, the State did not challenge the timeliness of the affidavit in the Court of Appeals. The issue will therefore not be addressed by this court. RAP 2.5(a). ³ Consequently, the only issue concerning the affidavit of prejudice is whether it applies to a court commissioner.

In the published portion of its opinion, the Court of Appeals held that an affidavit of prejudice may be filed against a juvenile court commissioner, as well as against a superior court judge. The Court of Appeals reasoned that commissioners sitting in juvenile court have concurrent power, authority and jurisdiction with juvenile court judges under RCW 13.04.021, ⁴ and thus should also be subject to removal by affidavit of prejudice. State v. Espinoza, 51 Wash.App. 719, 724-25, 754 P.2d 1287 (1988).

The Court of Appeals rejected the State's argument that the right to seek revision of a commissioner's decision sufficiently guards against prejudice. Under RCW 2.24.050 ⁵ the superior court has discretion to decide whether to conduct any further proceedings it considers necessary. The superior court judge can also limit review to the record made before the commissioner. See In re McGee, 36 Wash.App. 660, 662, 679 P.2d 933, review denied,101 Wash.2d 1018 (1984); In re Smith, 8 Wash.App. 285, 288-89, 505 P.2d 1295 (1973). A juvenile has access to a revision hearing, but the hearing is not automatic. It is granted only by motion and may or may not include further proceedings. ⁶ Thus, as observed by the Court of Appeals, a juvenile has no guaranty that any prejudice will be cured by the revision hearing.

It is well settled the question of credibility of witnesses must be decided at trial by the judge who hears their testimony and is able to observe their demeanor as a witness. Davis v. Department of Labor & Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 (1980); State v. Berlin, 46 Wn.App. 587, 593, 731 P.2d 548 (1987). If that fact finder is prejudiced against the defendant, those decisions of credibility will be skewed. A review will not remedy the error because there may be evidence in the record to support the decision, even though the deciding factor was prejudice. Additionally, the reviewing court can affirm without taking testimony or considering anything other than the record.

(Italics ours.) State v. Espinoza, 51 Wash.App. at 721, 754 P.2d 1287.

RCW 4.12.050 expressly provides for automatic disqualification of superior court judges. RCW 2.24.050 expressly provides for the right to a hearing on revision of a court commissioner's ruling. The Basic Juvenile Court Act, in RCW 13.04.021, expressly provides: "In any judicial district having a court commissioner, the court commissioner shall have the power, authority, and jurisdiction, concurrent with a juvenile court judge, to hear all cases under this chapter and to enter judgment ... subject to motion or demand by any party within ten days from the entry of the order or judgment by the court commissioner as provided in RCW 2.24.050." (Italics ours.) RCW 13.04.021.

Applying basic rules of statutory construction to RCW 4.12.050, RCW 2.24.050 and RCW 13.04.021, it is obvious that the Legislature did not provide for peremptory disqualification of court commissioners in juvenile cases. The sole remedy for challenging orders and judgments of court commissioners is a revision...