People v. Bridges

Opinion

THE COURT.

*

On February 19, 1981, appellant pled guilty before Judge Francis W. Halley to conspiracy to sell cocaine (count I, Pen. Code, § 182), sale of cocaine (counts II through IV, Health & Saf. Code, § 11352), transportation of cocaine (count V, Health & Saf. Code, § 11352) and possession for sale of marijuana (count VI, Health & Saf. Code, § 11359). Appellant’s codefendant in counts I through IV was one Christopher James Solario. On March 17, 1981, Judge Frank S. Pierson sentenced appellant to prison for concurrent four-year middle base terms on counts II, III, IV and V, plus concurrent two-year terms as to counts I and VI. Execution of the terms on counts I and V was stayed.

[236]

On or about May 1, 1981, appellant’s present counsel filed a notice of motion to recall sentence and/or in the alternative for writ of habeas corpus, with an accompanying declaration by appellant’s former counsel and supporting exhibits and points and authorities.

The gist of the declaration was that sometime after the March 17, 1981, sentencing hearing appellant’s former counsel learned that Judge Pierson had disqualified himself in the case at an earlier stage of the proceedings, that Judge Pierson had not disclosed the prior disqualification to counsel at sentencing or any other time, and that, had counsel been aware of the disqualification, he would have objected on March 17 to Judge Pierson’s sentencing appellant.

Attached to the motion was what purported to be a copy of the minutes of February 11, 1981, pertaining to a “further hearing on motion to suppress evidence and motion for disclosure” filed on behalf of codefendant Solario. The minutes reflect that Solario was present with counsel, but that appellant and his counsel were not. Judge Pierson heard the motions, which he granted in part and denied in part.. The minutes state “The Court disqualifies itself in this case as the Court has formed an opinion as to the Defendant’s guilt in this case.”

Appellant’s motion to recall sentence was based on the theory that as of February 11, 1981, Judge Pierson was disqualified under Code of Civil Procedure section 170, subdivision (5), from any further participation in action No. 172166, as to either defendant. Alternatively, the defense argued that Judge Pierson had a duty to make the Solario disqualification known to appellant and his counsel, so that they could make an informed decision as to whether to invoke the peremptory disqualification provisions of Code of Civil Procedure section 170.6.