Fraijo v. Superior Court

34 Cal. App. 3d 222, 109 Cal. Rptr. 909, 1973 Cal. App. LEXIS 796

• Court: California Court of Appeal
• Decided: September 12, 1973
• Docket: Civ. 42124
• Status: Published

Opinions

Opinion

ROTH, P. J.

Petitioner, charged in two separate informations with two counts of burglary (Superior Court of Los Angeles County file) (case No. A 514954), and two counts of violation of section 11501 of the Health and Safety Code and two counts of violation of Health and Safety Code section 11503 (case No. A 513381), seeks prohibition to prevent August J. Goebel from presiding at his trial, asserting he has filed a timely motion pursuant to Code of Civil Procedure section 170.6 (hereinafter referred to as section 170.6) to disqualify Judge Goebel.

Petitioner was arraigned in case No. A514954 on October 17, 1972, before Judge Goebel pursuant to case assignment procedures that were in force in the East Branch of the Los Angeles County Superior Court, which procedures do not appear to involve a so-called “Master Calendar Court” (see Sambrano v. Superior Court (1973) 31 Cal.App.3d 416 [107 Cal.Rptr. 274]), and pleaded not guilty.

Thereafter, on the same day in a pretrial conference a plea bargain was negotiated with tentative approval of the court and the case was on Judge Goebel’s calendar for plea and disposition on January 8, 1973.

On November 30, 1972, defendant was arraigned before Judge Goebel in case No. A513381. He pleaded not guilty and the matter was continued to December 13, 1972, for a pretrial hearing and trial setting. On that latter date the case was set for trial on January 19, 1973, and a pretrial hearing was set for January 3, 1973.

On December 29, 1972, defendant moved to advance both cases to that date, whereupon another plea bargain was negotiated and defendant pleaded guilty to one count of each information. A probation and sentence hearing was set for January 23, 1973, which hearing was later continued to January 27, 1973.

On January 26, 1973, Judge Goebel, by written order, withdrew from the plea bargain, set aside defendant’s pleas of guilty, entered not guilty pleas and set the matter for trial before him on January 30, 1973. Defendant on the latter date for the first time filed a section 170.6 declaration of prejudice. The case trailed to January 31, 1973, and was continued to March 7, 1973. Defendant filed a second section 170.6 declaration on February 7, 1973. Judge Goebel ruled as to each of defendant’s motions that they were not timely for the reason that “The Court had previously made a determination of factual issue.”

Section 170.6 provides in relevant part: “Where the judge . . . 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. ... In no event shall any judge ... entertain such motion if it be made . . . after trial of the cause has . . . commenced. . . . The fact that a judge . . . 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.”

On December 29, 1972, when defendant entered his pleas of guilty, the five-day limitation had not yet come into play. Case No. A 514954 had not yet been set for trial and case No. A 513381 was set for trial January 19, 1973, considerably more than five days off. The entry of the guilty pleas had the effect of vacating the trial setting in case No. A 513381, and obviating any trial setting in case No. A 514954.

When the court on January 26, 1973, withdrew from the plea bargain and reinstated the not guilty pleas and set the trial some four days hence, the defendant, insofar as the time limitations of section 170.6 are concerned, was then obliged to file his motion prior to commencement of the trial. This he did and if the trial had been set before anyone other than Judge Goebel on that date, to wit, January 26, 1973, there can be no question that defendant’s action would have been timely.

Thus, the question is whether Judge Goebel’s tentative acceptance and later rejection of the plea bargain constituted a “determination of contested fact issues relating to the merits” of the case and involves a construction of section 170.6 and Penal Code section 1192.5.

We have concluded that there was no contested fact issue and that the writ should issue. Kohn v. Superior Court, 239 Cal.App.2d 428 [48 Cal.Rptr. 832], holds that a judge in ruling on a motion under section 995 of the Penal Code does not make a determination of a factual issue relating to the merits of the case. Kohn reasons at pages 430 and 431 that such a ruling “. . . merely reviews the evidence. It does not substitute its judgment as to the weight thereof . . . nor does it resolve conflicting factual contentions. . . . The function . . . involves the determination of a legal issue only.....It is not enough that a judge make a determination which relates to contested fact issues. He must have actually resolved or determined conflicting factual contentions relating to the merits prior to trial before the right to disqualify is lost.”

A plea bargain is concerned only with the sentence to be imposed in exchange for defendant’s plea of guilty which plea admits all of the facts necessary to establish guilt. Sentencing is addressed to the discretion of the trial judge and involves an evaluation of the circumstances surrounding the offense. Such an evaluation is not a determination of a factual issue on the merits as envisioned by section 170.6. A judge’s evaluation of admitted facts, to determine whether to refuse or accept a proposed plea bargain, does not involve a fact finding function in respect of an issue to be tried.

Our ruling is based on the express provisions of section 170.6 and cases interpreting those provisions. We express no opinion on whether the rejection of a proposed plea bargain would provide a defendant with grounds to disqualify the judge under section 170, subdivision 5. That, of course, would permit a defendant to “shop” from judge to judge until he found one who would accept the proffered bargain. It is clear under section 170.6 that a defendant is entitled to make one motion and this limitation should prevent any practice which encourages “judge shopping.”

A peremptory writ of mandate will issue as prayed for.

Fleming, J., concurred.