MacKey v. Superior Court

Opinion

TURNER, J.

Petitioner seeks a writ of mandate directing the respondent court to.honor his peremptory challenge under Code of Civil Procedure, section 170.6. Reaffirming our decision in

People

v.

Superior Court (Hall)

(1984) 160 Cal.App.3d 1081, 1084-1086 [207 Cal.Rptr. 131], we hold that a

[1126]

case assigned by a municipal court magistrate to a particular superior court department under a direct calendaring system is subject to the “10-day/5-day” rule of section 170.6.

1

The petition is therefore granted.

2

Facts

After a preliminary hearing, petitioner was held to answer on felony charges and the magistrate set his arraignment for May 3, 1990, in department F of the east branch (Pomona) of the Los Angeles Superior Court. At petitioner’s arraignment (his first appearance in Department F), Judge Robert Gustaveson, who normally presides in that department, scheduled a pretrial conference for May 31, 1990, and trial for June 13, 1990.

On May 24, 1990, petitioner filed a declaration pursuant to section 170.6 as to Judge Gustaveson, who rejected the challenge as untimely because it was not filed within 10 days of arraignment. In so doing, the court relied on a 1989 amendment to section 170.6, which provides: “If directed to the trial of a cause which 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 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).) The court, expressing the consensus of the judges in the east branch of the superior court, took the position that this amendment was applicable to criminal cases assigned from municipal court to a particular superior court department under a “direct calendaring” system.