Ziesmer v. Superior Court, No. B162045.

• Court: California Court of Appeals
• Writing for the Court: Gilbert
• Citation: 132 Cal.Rptr.2d 130,107 Cal.App.4th 360
• Parties: David ZIESMER, Petitioner, v. The SUPERIOR COURT of Ventura County, Respondent; The People, Real Party in Interest.
• Docket Number: No. B162045.
• Decision Date: 25 March 2003

132 Cal.Rptr.2d 130 107 Cal.App.4th 360 David ZIESMER, Petitioner,
v.
The SUPERIOR COURT of Ventura County, Respondent;
The People, Real Party in Interest. No. B162045. Court of Appeal, Second District, Division 6. March 25, 2003. As Modified on Denial of Rehearing April 22, 2003.

[132 Cal.Rptr.2d 131]

[107 Cal.App.4th 362]

Loftus and Associates, Richard A. Loftus, Westlake Village, Dawn M. Dunbar, for Petitioner.

Gregory D. Totten, District Attorney, William Haney, Kevin Drescher, Michael D. Schwartz, Senior Deputy District Attorneys, for Real Party in Interest.

No appearance for Respondent.

GILBERT, P.J.

Here we conclude that the dismissal of a grand jury indictment pursuant to Penal Code section 995, subdivision (a)(1)(A) terminates the action. Therefore, if the action is refiled and assigned to the same judge to whom the case was originally assigned, a party may disqualify the judge pursuant to Code of Civil Procedure section 170.6.

We grant David Ziesmer's petition for writ of mandate and direct respondent court to vacate its order denying Ziesmer's timely peremptory challenge to the judge assigned to his case.

FACTS

On August 21, 2000, the Ventura grand jury indicted Ziesmer for murder. On May 25, 2001, the case was assigned to Judge O'Neill for all purposes. Ziesmer did not challenge Judge O'Neill as permitted by Code of Civil Procedure section 170.6 ("section 170.6").¹ Judge O'Neill set the case for trial and heard pretrial motions concerning application of the attorney-client privilege to items seized during a special master search and issued orders restricting Ziesmer's communications in jail.

107 Cal.App.4th 363

Prior to the date set for trial, Ziesmer moved to dismiss the grand jury indictment under Penal Code section 995, subdivision (a)(1)(A).² The superior court granted the motion because the Ventura County grand jury did not represent a fair cross-section of the community in violation of the Sixth Amendment of the United States Constitution. The order dismissing the indictment directed the People to resubmit the case to another grand jury or file a complaint. (See Pen.Code, §§ 997, 998 & 1010.) Immediately after the dismissal was entered, the People filed a

132 Cal.Rptr.2d 132

complaint under the same case number charging the same crimes as those in the dismissed indictment.

The master calendar department returned the case to Judge O'Neill. The day after the complaint was filed, Judge O'Neill granted Ziesmer's motion to continue the arraignment with a reservation of "any rights he might have or not have" to file a motion to disqualify the judge per section 170.6.

One day prior to the date set for arraignment, Ziesmer moved to disqualify Judge O'Neill per section 170.6. The People opposed the motion on the grounds that dismissal of the indictment did not terminate the action and that Ziesmer waived his right to challenge Judge O'Neill by failing to do so when he first learned of Judge O'Neill's assignment on May 25, 2001.

DISCUSSION I

Cases have held that a trial court abuses its discretion when it erroneously denies a motion to disqualify a judge under section 170.6. (People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391, 395, 109 Cal.Rptr.2d 897; Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315, 104 Cal.Rptr.2d 173.) The test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478, 243 Cal.Rptr. 902, 749 P.2d 339.) The abuse of discretion standard is itself much abused. In deciding a section 170.6 motion, the trial court has no discretion. We think it appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as an error of law. Therefore we review under the nondeferential de novo standard.

Section 170.6 guarantees a litigant "`an extraordinary right to disqualify a judge.'" (Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 154, 7 Cal.Rptr.2d 801.) When a challenge is timely and

107 Cal.App.4th 364

properly made, the challenged judge immediately loses jurisdiction and must recuse himself. If he does not, his subsequent orders and judgments are void. (In re Abdul Y. (1982) 130 Cal. App.3d 847, 854-855, 182 Cal.Rptr. 146.)

A party is limited to a single peremptory challenge "in any one action or special proceeding." (§ 170.6, subd. (3).) A challenge to a judge assigned for all purposes is timely if "the motion [is] made to the assigned judge ... by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance." (§ 170.6, subd. (2).) "A party's acquiescence of a judge to hear one action does not impair his or her right to exercise a challenge to prevent that judge from hearing another matter, even if that matter raises issues closely related to those in the first action." (Nissan Motor Corp. v. Superior Court, supra, 6 Cal. App.4th at p. 155, 7 Cal.Rptr.2d 801.)

II

Whether a dismissal under Penal Code section 995, subdivision (a)(1)(A)³ terminates an action for purposes of section 170.6 is an issue of first impression. Paredes v. Superior Court (1999) 77 Cal.

132 Cal.Rptr.2d 133

App.4th 24, 91 Cal.Rptr.2d 350 provides guidance in resolving this issue. One of two defendants charged with murder timely moved to disqualify the trial judge and the cause was reassigned. Ultimately the prosecutor was unable to proceed and the case was dismissed pursuant to section 1382. Section 1382, subdivision (a)(2) provides in relevant part: "The court ... shall order the action dismissed.... In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment...." A new complaint was filed, bearing a new case number, and reassigned to the same judge to whom it had been previously assigned. Section 1387, subdivision (a) provides in relevant part: "An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995...." After the reassignment, the second defendant moved to disqualify the judge. The trial court denied the motion on the ground that the refiled action was a continuation of the...