Woodman v. Superior Court

• Citation: 196 Cal.App.3d 407,241 Cal.Rptr. 818
• Decision Date: 20 November 1987
• Docket Number: No. B029000,B029000
• Court: California Court of Appeals
• Parties: Neil WOODMAN, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent, The PEOPLE, Real Party in Interest.

Page 818

241 Cal.Rptr. 818

196 Cal.App.3d 407

Neil WOODMAN, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent The PEOPLE, Real Party in Interest.

No. B029000.

Court of Appeal, Second District, Division 4, California.

Nov. 20, 1987.

Review Denied Jan. 14, 1988.

Chaleff & English, Gerald Chaleff, Santa Monica, Morinaka, Horikawa, Ono and Yamamoto and Michael Yamamoto, Los Angeles, for petitioner Neil Woodman.

Overland, Berke, Wesley, Gits, Randolph & Levannas, David Wesley, Jaffe & Jaffe, Jay Jaffee, Steiner & Gerstein and Robert S. Gerstein, Los Angeles, for petitioner Stewart Woodman.

No appearance for respondent.

Ira Reiner, Dist. Atty., Harry B. Sondheim and Dennis Kucera, Deputy Dist. Attys., Los Angeles, for real party in interest.

WOODS, Presiding Justice.

In this proceeding in mandate, we are asked to overrule the decision of this division in Zdonek v. Superior Court (1974) 38 Cal.App.3d 849, 113 Cal.Rptr. 669, which decided when a motion must be made under Code of Civil Procedure section 170.6 to disqualify a judge for prejudice in a case assigned from a master calendar court to a trial department for all purposes. Our decision, by a divided court, was criticized and its holding rejected by the Fourth District in Augustyn v. Superior Court (1986) 186 Cal.App.3d 1221, 231 Cal.Rptr. 298. On reflection, we are persuaded that Zdonek was wrongly decided, abandon the rule set forth therein, follow Augustyn, and grant the relief sought by this petition.

Petitioners Neil Woodman and Stewart Woodman are defendants in a criminal action christened "the black ninja case," a high publicity death penalty case. On July 16, 1986, the case was before Judge Munoz, supervising judge of the criminal departments of the Los Angeles Superior Courts, sitting in Department 100.

It was the policy of Judge Munoz and the superior court to assign such cases out of Department 100 to a named judge for all purposes, including trial. This practice included obtaining an agreement by counsel to the judge to whom the case would be assigned. Ultimately, however, if no agreement was reached, Judge Munoz would simply assign the case. On July 16, Judge Munoz met in camera with both the prosecutor and defense attorneys for the purpose of choosing a judge acceptable to all sides.

The names of two judges were discussed at the July 16 chambers conference. The name of one judge was unacceptable to the defense. The second judge proved unacceptable to the prosecution. The deputy district attorney handling the case was allowed a recess to confer with his office before making this determination. Finally, Judge Munoz indicated that he would assign the case to Judge Hiroshige. ¹

Although he had no specific recollection of whether the parties had agreed to Judge Hiroshige, Judge Munoz later testified that without such a specific agreement the case would not have been assigned to Judge Hiroshige. The later recollection of the deputy district attorney was that Judge Munoz asked him if the prosecution was going to file a peremptory challenge to Judge Hiroshige. The district attorney replied that he had no authority to do so without seeking the approval of his supervisors. He did not, apparently, ask for time to confer with his office as he had earlier in rejecting the second judge. ²

The chambers conference was adjourned and the case was called in open court. The defendants were arraigned, pled not guilty to each count charged and denied the special allegations of the complaint. The following colloquy then occurred:

"THE COURT: .... I'm going to go ahead and put [this case] in a trial court right now.

"MR. CHALEFF: That's fine.

"THE COURT: The 24th of July, 1986, Department 127, Judge Hiroshige."

On May 14, 1987, nearly one year after the assignment of the case to Judge Hiroshige, the prosecution sought to disqualify Judge Hiroshige under Code of Civil Procedure section 170.6. ³

The defendants challenged the motion as untimely. They argued the motion should have been filed in Department 100 when the case was first assigned to Judge Hiroshige.

On July 17, 1987, the court conducted a hearing on the issue of timeliness at which Judge Munoz testified and the declaration of the deputy district attorney was submitted. At that time, Judge Hiroshige determined that in the absence of an express stipulation before Judge Munoz to accept Judge Hiroshige as the trial judge, the People had not waived their right to the peremptory challenge of him. He also ruled that he could not consider any evidence other than the transcript of the assignment of the case to him on July 16, 1986.

On July 28, 1987, this petition was filed. On August 3, 1987, we issued an alternative writ and stay.

On August 14, 1987, the People wrote this court urging us to discharge the alternative writ and dismiss the petition as untimely filed. The People contended that the time for filing such writ is governed by Code of Civil Procedure section 170.3, subdivision (d), which provides: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision...."

The People pointed out that 11 days had passed between Judge Hiroshige's ruling and the filing of the petition. By order of August 18, 1987, we denied the People's request. They have nonetheless raised the timeliness issue again in their return.

I

Preliminarily, we have elected to reconsider the People's argument that, under the time limitations set forth in section 170.3, subdivision (d), the instant petition was untimely. Petitioners' response to this argument is that section 170.3, subdivision (d) applies only to challenges for cause set forth in sections 170.1 to 170.5.

The People support their contention with these arguments: (A) They read the phrase "disqualification of a judge" as used in section 170.3, subdivision (d) broadly, without distinguishing between disqualification by challenge for cause and disqualification by peremptory challenge. (B) They cite language appearing in the peremptory challenge provision, which provides that it shall not "affect or limit" the challenge for cause provisions but be "construed as cumulative thereto" (§ 170.6, subd. (7)), as evincing a legislative intent to apply the time limitations for taking a writ for cause to the peremptory section. (C) They cite a Third District opinion which, they say, "reached the conclusion that the time limits of [sic] sec. 170.3, subd. (d) are applicable in seeking writ relief from a court's failure to comply with Code of Civil Procedure sec. 170.6."

A

While the People are correct that the term "disqualification" is a generic when used in relation to the removal of a judge either for cause or by peremptory challenge, it does not follow that the two procedures are identical. On the contrary, a challenge for cause is a "separate and distinct right" from the peremptory challenge described in section 170.6. (Pacific Etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 80, 147 Cal.Rptr. 44.) Accordingly, the mere use of the phrase "disqualification of a judge" in the time limitation provision of 170.3, subdivision (d) does not evince a legislative intent that that limitation apply to all disqualification motions.

Construing the statute as a whole, as we must, (San Francisco Fire Fighters v. Civil Service Com. (1987) 191 Cal.App.3d 919, 923, 236 Cal.Rptr. 713 [words in a statute "must be construed in context...."] ) it is significant that section 170.3 sets forth an elaborate procedure for the judicial determination of the propriety of a challenge for cause which is not applicable to the peremptory challenge. As petitioners point out, but for a single minor exception, nothing in the statutory provisions dealing with challenges for cause expressly references section 170.6.

Moreover, we have independently examined the legislative history of section 170.3, subdivision (d) which makes it abundantly clear that the 1984 revision of the challenge for cause statute, of which this section is part, was to have no effect on the peremptory challenge statute. The Senate Final History of Senate Bill No. 1633, which amended the statute, specifically notes: "Code of Civil Procedure Sec. 170.6 provides for the peremptory challenge of a trial court judge. This bill would not amend that section." The same conclusion was reached in the analysis of the bill provided to the Assembly Committee on the Judiciary. Finally, the chairman of the State Bar subcommittee, which was the driving force behind revision of the challenge for cause statute, wrote in a supporting memorandum: "No revision is suggested to the present so-called 'preemptory' [sic] challenge of trial judges. (C.C.P. § 170.6.)" Legislative history can shed significant light on legislative intent for the purpose of construing a statute. (Lewis v. Ryan (1976) 64 Cal.App.3d 330, 333-334, 134 Cal.Rptr. 355.)

B

The sole reference in section 170.6 to the provisions dealing with challenges for cause appears in subdivision (7) which states, in part: "Nothing in this section shall affect or limit the provisions of Section 170 ..., of this code and this section shall be construed as cumulative thereto." Seizing upon the word "cumulative" the People argue, in effect, that this incorporates the time limitations of section 170.3, subdivision (d). "Cumulative" is not, however, synonymous with incorporation. " ' "Cumulative," as defined by the legal lexicographers, means "additional; that which is superadded to another thing of the same character and not substituted for it." ' [Citations.]" (Verry v. Eckel (1943) 61 Cal.App.2d 595, 599, 143 P.2d 394, quoting Mannington v. Hocking Valley Ry. Co., (C.C.1910) 183 F. 133.) Moreover, with specific reference to remedies, " '[a] cumulative remedy...