Points and Authorities Regarding Issue of Code of Civil Procedure Section 170.6
FILED
5/5/03
By [signature]
DEPUTY
JAMES C. BRAZELTON
District Attorney
Stanislaus County
Courthouse
Modesto, California
Telephone: 525-5550
Attorney for Petitioner
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF STANISLAUS
D.A. Number
THE PEOPLE OF THE STATE OF CALIFORNIA
Petitioner,
vs.
SCOTT LEE PETERSON
Defendant,
No. 1056770
POINTS AND AUTHORITIES REGARDING ISSUE OF CODE OF CIVIL PROCEDURE SECTION 170.6
Facts
On March 3, 2003 the Modesto Bee filed a Petition in the Superior court seeking access to the search warrants in the "Laci Peterson Investigation." The case was captioned "In re 8 sealed search warrants - Laci Peterson investigation" and was assigned case number 1045098 by the court. The case was assigned to the Honorable Judge A. Girolami for hearing. The Modesto Bee also filed a companion Petition to unseal search warrants in the "Carmen Sabatino investigation" under case number 1045110, which was also assigned to the same court. Judge Girolami recused himself from the
Sabatino case (number 1045110) but not the "Peterson investigation" matter. The People filed a C.C.P. §170.6 in case number 1045098.
Issue
Does the People's §170.6 challenge in case number 1045098 apply to this criminal case?
Law
Code of Civil Procedure section 170.6 states in part:
"(1) No judge, court commissioner, or referee of any superior court of the State of California shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge or court commissioner is prejudiced against any party or attorney or the interest of an party or attorney appearing in the action or proceeding.
(2) Any party to or any attorney appearing in any such action or proceeding may establish this prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge, court commissioner, or referee before whom the action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of the party or attorney so that the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge, court commissioner, or referee. Where the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee 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
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the time the cause is assigned for trial. If directed to the trial of a cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance. If the court in which the action is pending is authorized to have no more than one judge and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion. In no event shall any judge, court commissioner, or referee entertain the motion if it be made after the drawing of the name of the first juror, or if there be no jury, after the making of an opening statement by counsel for plaintiff, of if there is no such statement, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commended. If the motion is directed to a hearing (other than the trial of a cause), the motion shall be made not later than the commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be. 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 provided for herein at the time and in the manner hereinbefore provided.
A motion under this paragraph may be made following reversal on appeal of a trail court's decision, or following reversal on appeal of a trail court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.
Notwithstanding paragraph (3) of this section the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this action regardless of whether that party or side has previously done so. The motion shall be made
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within 60 days after the party or the party's attorney has been notified of the assignment.
(3) If the motion is duly presented and the affidavit or declaration under penalty of perjury is duly filed or such oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge, court commissioner, or referee to try the cause or hear the matter. In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge, court commissioner, or referee of he court in which the trial or matter is pending or, if there is no other judge, court commissioner, or referee of the court in which the trial or matter is pending, the Chair of the Judicial Council shall assign some other judge, court commissioner, or referee to try the cause or hear the matter as promptly as possible. Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section; and in actions or special proceedings where there may be more than one plaintiff or similar party appearing in the action or special proceeding, only motion for each side may be made in any one action or special proceeding.
(4) Unless required for the convenience of the court or unless good cause is shown, a continuance of the trial or hearing shall not be granted by reason of the making of a motion under this section. If a continuance is granted, the cause or matter shall be continued from day to day or for other limited periods upon the trial or other calendar and shall be reassigned or transferred for trial or hearing as promptly as possible. (Emphasis added.)
In the case of Le Louis v. Superior Court, (1989) 209 Cal.App.3d 669, the court defined an action and special proceeding:
"Judicial remedies are divided into two classes: (1) actions and (2) special proceedings. (Code Civ. Proc., §§ 21.) An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or
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protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. (Code Civ. Proc., §§ 22.) Every other remedy is a special proceeding. (Code Civ. Proc., §§ 23.) Actions are of two kinds: (1) civil and (2) criminal. (Code Civ. Proc., §§ 24.) The Penal Code defines and provides for the prosecution of a criminal action. (Code Civ. Proc., §§ 31.) "The proceedings by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action." (Pen. Code, §§ 683.)
Id, at 677.
In the case of Stephens v. Superior Court, (2002) 96 Cal.App.4th 54, 61-62 the court determined the standard of reviewing a peremptory challenge, saying:
"As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it. (People v. Superior Court (Williams), supra, 8 Cal.App.4th at pp. 697-698.)"
In Lyons v. Superior Court, (1977) 73 Cal.App.3d 625, a defendant entered a conditional guilty plea in municipal court. After a superior court judge refused to accept the plea, the matter was remanded to the municipal court where the defendand entered a different conditional guilty plea. When the matter was assigned to the same superior court judge who had rejected the first plea, the defendant filed a disqualification motion. It was timely. The hearing on the second plea bargain . . . is a separate proceeding from the hearing on the original plea bargain. When the plea was rejected the matter was remanded to the municipal court
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for further proceedings. Potentially those further proceedings could have resulted in another plea. . . . In any event, when the matter was thereafter certified again to the superior court . . ., a new file number was given to the case. The hearing on the new conditional plea is not merely a 'continuation of the main proceeding' [citations], but rather a separate proceeding in which different determinations might be reached." (Id. at pp. 628-629. Emphasis added.)
In Paredes v. Superior Court, (1999) 77 Cal.App.4th 24, 32-33, the court said:
"Subdivision (3) of the statute bars any party from making more than one motion 'in any one action or special proceeding;' by negative implication, in two successive actions a party may move to disqualify in each, or may disqualify in the later action without waiving that right by failing to so move in the earlier. The wording of the statute thus appears to foreclose any argument premised on the doctrine of collateral estoppel." (Solberg v. Superior Court, supra, 19 Cal.3d at p. 190, fn. 6."
In the case before the bench the People have not exercised a peremptory challenge. The case at bench is a criminal action and did not come into existence until the defendant was charged. (See Le Louis v. Superior Court, supra, at 677.) The prior action involving the Modesto Bee was a separate action and had a separate case number. (See Lyons v. Superior Court, supra, at 629.) The statute is to be liberally construed to allow a party to exercise a challenge; the People have not exercised that right in this action and therefore
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retain that right until further application of the statute. The Modesto Bee action is a separate action within the meaning of the statute and the doctrine of collateral estoppel is not applicable. (See Solberg v. Superior Court, (1977) 19 Cal.3d 182, 190, fn. 6.)
The fact tat this case is a special circumstance case or according to the defense, may involve issues that were raised in the Modesto Bee case does not change this analysis. In the case of Waldon v. Superior Court, (1987) 196 Cal.App.3d 809 the court said that a Penal Code section 1368 proceeding was separate and distinct from the criminal action from it arose. The defendant was therefore entitled to exercise a separate section 170.6 challenges in the competency hearing and the criminal action. Waldon was a death penalty case.
Conclusion
The People have not exercised a peremptory challenge in this case pursuant to Code of Civil Procedure §170.6 and the People's challenge in action number 1045098 does not apply to this case. Action
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1045098 does also not collaterally effect the People in this case.
Dated this 3rd day of May, 2003, at Modesto California.
Respectfully submitted,
JAMES C. BRAZELTON
District Attorney
[signature]
David P. Harris
Senior Deputy District Attorney
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